Citation Nr: 0627302 Decision Date: 08/29/06 Archive Date: 09/06/06 DOCKET NO. 05-36 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for liver cancer, claimed secondary to alcoholism with cirrhosis, claimed secondary to post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Kay Hudson, Counsel INTRODUCTION The veteran had active service from October 1961 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of January 2005, which denied service connection for liver cancer and alcohol abuse. Although the veteran filed what he referred to as a "claim" for service connection for liver cancer, secondary to alcohol abuse, secondary to PTSD in June 2005, this was within a year of the January 2005 rating decision addressing the same matter, and the RO did not consider the claim on the basis of new and material evidence, nor was any additional notice required in response to the "claim." Further, the notice of disagreement was received in July 2005, within a year of the January 2005 rating decision. Moreover, it is to the veteran's advantage to have his appeal considered on a de novo basis. For these reasons, the Board construes the January 2005 rating decision as the action on appeal. In August 2006, the Board granted a motion to advance this case on the docket. 38 C.F.R. § 20.900(c) (2005). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran's case was advanced on the docket because of information received indicating he is terminally ill. Unfortunately, however, the evidence of record does not provide a sufficient basis on which to decide the claim, and further development must be undertaken prior to an appellate decision. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005). The veteran claims service connection for liver cancer, secondary to alcohol abuse, which in turn is claimed to be secondary to service-connected PTSD. Service connection may be awarded for an alcohol abuse disability which arises secondarily from a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, the Federal Circuit Court in Allen cautioned that such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service- connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id., at 1381. In support of his claim, the veteran submitted a statement from C. Robison, M.D., dated in June 2005, who wrote that the veteran had liver cancer which was etiologically related to alcoholic cirrhosis, which was etiologically related to "alcohol abuse resulting from service connected PTSD, and other issues." However, in addition to this reference to "other issues," there is no indication that Dr. Robison is a psychiatrist (in 2004, he performed a VA-contracted QTC physical examination, while another doctor performed the psychiatric examination). Added to this limitation is the fact that it appears to have been based solely on the veteran's self-reported history of "extremely hard military service with PTSD, self medicated by large quantities of alcohol over at least two decades." Since the veteran is not competent, as a layman, to state that his alcohol use is due to self-medication, this opinion, on its own, does not provide the "clear medical evidence" necessary to establish that the alcohol abuse was caused by PTSD, rather than willful misconduct. The evidence currently of record does not contain any contemporaneous evidence of alcohol abuse or PTSD prior to 2002. However, an August 2002 VA medical record refers to a VA hospitalization for a "nervous breakdown" the previous year, due to a divorce, and he said he had lost his job due to 9/11 (September 11, 2001). A November 2002 mental hygiene clinic note referred to a mental health evaluation of December 2001, but that evaluation is not of record. Reference to a hospitalization in San Antonio due to a suicide attempt, and/or for alcohol detoxification, a year earlier was noted in the November 2002 report. In addition, the veteran said he was "knocked out" by the events of 9/11, with symptoms including thoughts of Vietnam. He said he had a history of heavy alcohol use from 1965 to 2001. There are notations to a history of treatment at "several" VA facilities since service, but only recent records are in the file. It appears all VA treatment records, including the reported hospitalization(s) in 2001 and the December 2001 psychiatric evaluation, are not of record. A complete medical history is essential in this case, since prior records may document the presence and extent of any psychiatric symptoms prior to formal diagnosis of PTSD and details concerning the veteran's alcohol abuse history. It is also argued that alcohol abuse began in service. However, service connected compensation may not be awarded for disability due to "primary" alcohol abuse, defined as alcohol abuse disability arising during service from voluntary and willful drinking to excess. Allen v. Principi, supra. This includes secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. Id; see 38 U.S.C.A. § 1110. Therefore, since service connection for alcohol abuse, and conditions secondary thereto, can only be granted if the alcohol abuse is due to a service-connected disability, the RO must obtain all available records of treatment for either of these conditions, to specifically include the 2001 records. In addition, an opinion must be obtained (due to his poor health, he need not report for an examination). See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Due to the medical complexity, this opinion must be provided by a psychiatrist. Also, the veteran was awarded disability benefits from the Social Security Administration (SSA) in 2003. Although the medical conditions upon which benefits were granted is not known, VA is required to obtain evidence from the Social Security Administration, including any decisions by an administrative law judge, and give the evidence appropriate consideration and weight. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Accordingly, the case is REMANDED for the following action: 1. Obtain all records of VA treatment for PTSD and/or alcohol abuse, which are not already of record. In particular, obtain records of a VA hospitalization in San Antonio in 2001, and the report of a mental health consultation in December 2001. Request complete copies of the veteran's inpatient and outpatient treatment records from the VA facilities in San Antonio and El Paso, Texas; Las Cruces and Albuquerque, New Mexico; and Muskogee and Oklahoma City, Oklahoma. If these records refer to earlier treatment for either condition, or treatment at any other VA facility, obtain those records as well. 2. Request the veteran's medical and adjudication records from the Social Security Administration. All efforts to obtain these records should be fully documented, and the Social Security Administration should provide a negative response if records are not available. 3. After obtaining as many of the veteran's VA medical records and Social Security records as possible, refer the complete claims file, along with a copy of this REMAND, to a psychiatrist for an opinion as to whether alcohol abuse was as likely as not caused by service- connected PTSD. In providing this opinion, please consider the conflicting history concerning onset of the veteran's alcohol abuse (either at 15-16 years old, during service, or after service). The complete rationale for the psychiatrist's opinion should be provided, with reference to the relevant evidence. 4. Thereafter, readjudicate the claim on appeal. If the decision is less than a full grant of the benefit sought, furnish the veteran and his representative with a supplemental statement of the case, and provide them with an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appeasable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2005).