Citation Nr: 0317388 Decision Date: 07/24/03 Archive Date: 07/31/03 DOCKET NO. 94-10 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran had active military service from September 1969 to June 1971 and from August 1973 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1992 rating determination of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for PTSD, evaluated as 30 percent disabling, from May 1992. In September 1993, the rating was increased to 50 percent, from May 1992. This case was previously before the Board in June 2001 at which time the issue on appeal was deferred because the veteran and his representative raised the issue of disability resulting from alcohol or drug abuse, claimed as secondary to or as a symptom of a service-connected PTSD. The Board had imposed a temporary stay on adjudication of these claims until final review was completed by the United States Court of Appeals for the Federal Circuit with respect to its decision issued on February 2, 2001, in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The stay has been lifted. The veteran has also claimed entitlement to a total disability rating based upon individual unemployability. This issue has not been developed or certified for appeal. Therefore, it is referred to the RO for appropriate action. REMAND Unfortunately, a remand is required in this case in accordance with due process and evidentiary development matters. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration and to comply with due process. First, the veteran and his representative have argued that the veteran's alcohol abuse must be considered in conjunction with his PTSD claim and have also maintained that alcohol abuse was caused by his service-connected PTSD. The veteran has raised an inferred claim for service connection for alcoholism as secondary to his service-connected PTSD. See Akles v. Derwinski, 1 Vet. App. 118 (1991). As noted by the Board in June 2001, the claims for a higher rating for PTSD and service connection for alcohol abuse as secondary to PTSD are inextricably intertwined. See Hoyer v. Derwinski, 1 Vet. App. 208 (1991). As the RO has not yet adjudicated the secondary service connection claim, this issue must be remanded for consideration by the agency of original jurisdiction and the claim for a higher rating for PTSD will be held in abeyance pending this adjudication. See 38 U.S.C.A. §§ 7104, 7105 (West 2002). With respect to the veteran's substantive contentions, on June 25, 2001, the Board imposed a temporary stay on the adjudication of claims for compensation based on alcohol and drug abuse related disabilities, claimed either as secondary to or as a symptom of a service-connected disability, pending final resolution of Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Subsequently, in the case of Allen v. Principi, 237 F.3d 1368, 1370 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a veteran can receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. The Allen decision explicitly overruled prior decisions on this subject from the Court, including in particular Barela v. West, 11 Vet. App. 280 (1998). The Allen decision also appears to overrule, either in total or in part, two precedent opinions issued by the VA General Counsel, including VAOPGCPREC 2-98 and VAOPGCPREC 7- 99. Following the issuance of the Allen decision, the Department of Justice filed with the Federal Circuit a petition for panel rehearing and for rehearing en banc. In a closely divided decision, those petitions for rehearing were denied by the Federal Circuit. See Allen v. Principi, 268 F.3d 1340 (Fed. Cir. 2001) (en banc order). The Department of Justice recently decided against attempting to obtain further review of Allen before the United States Supreme Court. In Allen, the Federal Circuit held that 38 U.S.C. § 1110 permits a veteran to receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. In other words, section 1110 does not preclude compensation for an alcohol or drug abuse disability secondary to a service- connected disability, or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. Rather, the statute precludes compensation only for (a) primary alcohol abuse disabilities, and (b) secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. The Federal Circuit defined "primary" as meaning an alcohol abuse disability arising during service from voluntary and willful drinking to excess. Additionally, the veteran submitted evidence, consisting of VA treatment records, to the RO in May 2001. The RO has not yet considered this evidence; therefore, remand is required for consideration of the evidence and the issuance of a supplemental statement of the case (SSOC). The veteran has also identified recent VA medical records and requested that they be obtained and considered prior to the adjudication of his PTSD claim. See Statement in Support of Claim, dated January 15, 2002. These records must be obtained on remand. As the claim must be remanded for the foregoing reasons, the veteran should also be re-examined by VA in order to ascertain the current severity of his PTSD and any associated disorders. Therefore, in order to ensure that the record is fully developed and comply with the veteran's due process rights, this case is REMANDED to the RO for the following: 1. After undertaking any appropriate development, adjudicate the issue of entitlement to service connection for alcohol dependence as secondary to the veteran's service-connected PTSD. The veteran and his representative should be notified of this decision and of the veteran's appellate rights. The veteran and his representative are hereby notified that the Board does not have jurisdiction to review an issue unless VA receives a timely notice of disagreement and substantive appeal. See 38 U.S.C.A. § 7105(a) (West 2002). 2. Contact the veteran and request that he identify the names, addresses, and approximate dates of any treatment received from VA and non-VA health care providers for any type of symptoms or complaints associated with PTSD from 2000 to the present. Attempt to obtain copies of the treatment records identified by the veteran. All reports and records received should be associated with the claims folder. 3. Obtain the records of all the treatment provided to the veteran for any psychiatric complaints or disorders from the Dallas, Texas, VAMC dated since January 2000. 4. Once the foregoing development has been accomplished to the extent possible, and the available medical records have been associated with the claims file, schedule the veteran for a VA psychiatric examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted. Following examination of the veteran, the examiner should identify what symptoms, if any, the veteran currently manifests or has manifested in the recent past that are attributable to his service-connected PTSD and any associated disorders. The examiner must conduct a detailed mental status examination. The examiner must also discuss the effect, if any, of the veteran's PTSD and any associated disorders on his social and industrial adaptability. In so doing, the examiner is asked to address his or her findings in the context of the veteran's work history. The examiner should assign a Global Assessment of Functioning (GAF) score for the veteran's PTSD and any associated disorders consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. The examiner should render a medical opinion as to which symptoms and what social and occupational impairment are attributable to the service-connected PTSD and any associated disorders as opposed to any nonservice-connected condition(s). If it is impossible to distinguish the symptomatology and/or social and occupational impairment due to any nonservice-connected condition(s), the examiner should so indicate. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 5. Review the claims folder and ensure that all of the foregoing development have been conducted and completed in full. Specific attention is directed to the examination report. Ensure that the medical report is complete and in full compliance with the above directives. If the report is deficient in any manner or fails to provide the specific opinion(s) requested, it must be returned to the examiner for correction. 38 C.F.R. § 4.2 (2002); see also Stegall v. West, 11 Vet. App. 268 (1998). Ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. 6. Finally, readjudicate the veteran's claim for a higher rating for PTSD, with application of all appropriate laws and regulations (both the old and revised versions of Diagnostic Code 9411) and consideration of any additional information obtained as a result of this remand. Review the evidence of record at the time of the 1992 rating decision that was considered in assigning the original disability rating for the veteran's disability, then consider all the evidence of record to determine whether the facts show that he was entitled to a higher disability rating for this disability at any period of time since his original claim. See Fenderson v. West, 12 Vet. App. 119 (1999). 7. If the benefit sought on appeal remains denied, the veteran and his representative, if any, should be provided an SSOC and be given an appropriate period to respond. The SSOC must include citation to 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002) and consider all evidence received since the April 2000 SSOC, including, but not limited to, the evidence submitted by the veteran to the RO in May 2001. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until notified. The veteran 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 by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. _________________________________________________ P. M. DILORENZO 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 appealable 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) (2002).