Citation Nr: 1040106 Decision Date: 10/26/10 Archive Date: 11/01/10 DOCKET NO. 08-31 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for alcoholism with liver damage. 3. Entitlement to service connection for brain damage with tremors, memory loss, and slurred speech. 4. Entitlement to service connection for heart disease with arrhythmia. 5. Entitlement to service connection for an eye condition with cataracts. 6. Entitlement to service connection for basal cell carcinoma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The Veteran had active service in the Army from November 1968 to August 1970. The Veteran received the Combat Infantry Badge and the Bronze Star medal with Valor Device for his service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Acting Veterans Law Judge in August 2010. A copy of the transcript of this hearing has been associated with the claims file. At the time of the hearing, the record was held open for 30 days for the submission of additional evidence. Additional evidence was submitted with a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 20.1304. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board notes that a significant amount of evidence was associated with the claims file after the last issued supplemental statement of the case. Upon remand, the AMC/RO is directed to review all evidence of record prior to re- adjudication of the claims. The Veteran has reported that he had been awarded disability benefits from the Social Security Administration (SSA) based on disability. There is no evidence that VA has sought these records. VA has a duty to seek records that SSA possesses. See 38 C.F.R. § 3.159(c); see Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Accordingly, the AMC/RO should contact SSA and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including any medical records in its possession. As these records may be relevant to all claims in appellate status, all claims are remanded to allow for the SSA records to be obtained. During the pendency of the appeal, the RO has provided the Veteran several VA examinations. After review of the resultant examination reports, the Board finds that additional VA examinations, addendum, and an opinion is required regarding five of the claims to ensure that there is adequate, non-speculative evidence of record regarding the questions on appeal. Service connection is in effect for posttraumatic stress disorder (PTSD). The Veteran asserts that the disability causes alcoholism. The law has consistently precluded direct service connection for alcohol and drug abuse. The Federal Circuit, however, has held that there can be service connection for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). There are opinions of record regarding this claim. In a November 2007 VA examination, an examiner indicated that an opinion could not be provided without resort to speculation, but noted that the Veteran was not currently reporting problems with alcohol, and wrote that alcohol use pre-dated service. VA treatment records dated in August 2007 provide contrasting evidence regarding the amount of alcohol consumption, with one treatment record indicating that the Veteran had decreased consumption and was drinking four glasses of wine a night, while another record indicated that the daily consumption was 2/3 glasses of wine. In an August 2010 VA psychiatric examination, the examiner found that the Veteran had alcohol abuse secondary to PTSD, but did not indicate review of the claims file. Thus, there is no evidence that the examiner had knowledge of the facts of the Veteran's alcohol consumption, to include the varying descriptions of his use. The Board finds that the claims file should be sent to the examiner who provided the August 2010 VA PTSD examination to allow for her to review of the claims file and provide additional rationale for her opinion. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). If that examiner is not available, then schedule the Veteran for another examination regarding the relationship between any alcoholism and his PTSD, if any. The Veteran asserts that the complained disabilities of brain damage, heart disease with arrhythmia, an eye condition, and basal cell carcinoma are attributed to the service-connected PTSD. The Veteran has also made the contention, more specifically, that the PTSD caused the heart disease, which caused the brain damage, which caused the eye condition with cataracts. The Veteran appears to be making a similar argument regarding the basal cell carcinoma. The Board notes, again, that service connection may be established for a disability that is caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. Although the claims file contains opinions regarding the contended connection between PTSD and heart disease, the relationship between the other contended disabilities have not been addressed. Further, it appears that additional pertinent records may be available. In this regard, the Veteran had a cardiac arrest on October 7, 2002, and this event is central to the Veteran's contentions. The Veteran has submitted records from HealthSouth Lakeshore Rehabilitation Hospital, but it is unclear that all relevant records were obtained, to include the report of cardiac catheterization. The AMC/RO should seek these additional records. Then, the Veteran should be provided a VA examination by a cardiologist that thoroughly evaluates the contentions regarding secondary service connection. The Veteran has also asserted that disabilities are due to presumed exposure to Agent Orange during his service in the Republic of Vietnam. See 38 C.F.R. §§ 3.307, 3.309. In the March 2007 VA psychiatric examination, the examiner wrote under prior medical history that the Veteran had surgery for basal cell carcinomas and that they were "possibly related to agent orange." Basal cell carcinoma is not among the diseases presumed to be due to an herbicide agent. See 38 C.F.R. §§ 3.307, 3.309. This, however, does not prevent the granting of service connection with evidence that links the diagnosed disability to the presumed exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Although a speculative opinion, the Board finds that the March 2007 opinion creates the duty to obtain a VA opinion regarding whether the basal cell carcinoma is due to the presumed exposure to the herbicide agents. See 38 C.F.R. § 3.159. Upon remand, the AMC/RO should obtain such an opinion. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran requesting that he identify, and provide necessary authorizations for VA to assist him in obtaining, any outstanding records of treatment pertinent/relevant to the claims in appellate status, to include from the HealthSouth Lakeshore Rehabilitation Hospital. Then, copies of all outstanding records of VA and non-VA treatment of the Veteran for the disabilities in appellate status should be obtained and made part of the claims file. 2. Contact SSA and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including any SSA administrative decision(s) (favorable or unfavorable) and the underlying medical records SSA used in making its decision(s). 3. After the development directed in paragraphs 1 through 2 is completed, send the claims file to the examiner who completed the August 2010 VA psychiatric examination for an addendum, if that examiner is available. If that examiner is not available, schedule the Veteran for another mental diseases examination by a mental health professional. Following a review of the evidence in the claims file, to include the November 2007 VA psychiatric examination report and VA records dated in August 2007 that detail the Veteran's alcohol consumption (and, if the examiner who examined the Veteran is not available, a new examination), the examiner is requested to render an opinion on the following: Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran's PTSD causes or aggravates an alcohol abuse/alcoholism disability? If so, the examiner should fully detail the additional disability caused by the alcohol abuse/alcoholism disability. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. More likely and as likely support the claim; less likely weighs against the claim. The examiner is requested to provide a rationale for any opinion provided. If the examiner is unable to answer any question presented without resort to speculation, he or she should so indicate and provide the reason that an opinion would be speculative. 4. After the development directed in paragraphs 1 through 2 is completed, the Veteran should be afforded an examination by a cardiologist to determine the nature and etiology of the disorders contended to be secondary to his service-connected PTSD. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, particularly service medical records, post- service medical records and the statements and testimony presented by the appellant in connection with his appeal. Following this review and the examination, the examiner is requested to provide answers to the following questions: a) Is it at least as likely as not (50 percent or greater probability), when considering the evidence of record, that the Veteran's PTSD caused or aggravated heart disease with arrhythmia? b) Is it at least as likely as not (50 percent or greater probability), when considering the evidence of record, that the Veteran's PTSD caused or aggravated brain damage, or that the heart disease with arrhythmia caused or aggravated brain damage? If it is found that this is at least as likely as not, the examiner should specifically detail the causation found to have occurred. c) Is it at least as likely as not (50 percent or greater probability), when considering the evidence of record, that the Veteran's PTSD caused or aggravated an eye condition with cataracts, or that the heart disease with arrhythmia caused or aggravated an eye condition with cataracts, or that brain damage caused or aggravated an eye condition with cataracts? If it is found that this is at least as likely as not, the examiner should specifically detail the causation found to have occurred. d) Is it at least as likely as not (50 percent or greater probability), when considering the evidence of record, that the Veteran's PTSD caused or aggravated basal cell carcinoma, or that the heart disease with arrhythmia caused or aggravated basal cell carcinoma, or that brain damage caused or aggravated basal cell carcinoma? If it is found that this is at least as likely as not, the examiner should specifically detail the causation found to have occurred. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. More likely and as likely support the; less likely weighs against the claim. The examiner is requested to provide a rationale for any opinion provided. If the examiner is unable to answer any question presented without resort to speculation, he or she should so indicate and provide the reason that an opinion would be speculative. 5. After the development directed in paragraphs 1 through 2 is completed, the AMC/RO should obtain a medical opinion regarding whether it at least as likely as not (50 percent or greater probability), when considering the evidence of record, that the Veteran's basal cell carcinoma is attributable to presumed exposure to an herbicide agent. The clinician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. More likely and as likely support the; less likely weighs against the claim. The clinician is requested to provide a rationale for any opinion provided. If the clinician is unable to answer any question presented without resort to speculation, he or she should so indicate and provide the reason that an opinion would be speculative. 6. Thereafter, the claims on appeal must be readjudicated on the basis of all of the evidence of record and all governing legal authority. If any benefit sought on appeal is not granted, the Veteran and his representative must be provided with a supplemental statement of the case, which addresses all of the evidence received since the statement of the case was issued. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ JAMES G. REINHART Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2009).