Citation Nr: 1122998 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 04-18 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Wade R. Bosley, Attorney at law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1969 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2002 by the Department of Veterans' Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In May 2008, the Board denied the claim, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). The Court set aside the Board's decision in a September 2010 Memorandum decision and remanded the case to the Board for further action. The Veteran and his spouse testified at a personal hearing at the RO in November 2004. A transcript of that hearing is associated with the claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND As indicated, the appeal was remanded to the Board by the Court in September 2010. In light of the Court's decision, the Board finds that a remand is necessary to allow for development and adjudication of an intertwined issue. The Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). In the September 2010 Court decision, the Court identified the issue of entitlement to service connection for alcohol abuse as an "unexplored issue" and indicate that a medical examination is required to determine if the Veteran's alcohol abuse is a service-connected disability, either on a direct basis or as secondary to the claimed PTSD. Substance abuse disorders are generally considered to be the result of willful misconduct on the part of the Veteran. Direct service connection may be granted only when a disability or cause of death 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, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOGCPREC 7-99, published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOGCPREC 2-98, published at 63 Fed. Reg. 31,263 (February 10, 1998). The Board observes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that there may be service connection for compensation 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). However, the Federal Circuit indicated that veterans could only recover if they could establish that the alcohol or drug abuse disability was secondary to or is caused by a primary service-connected disorder. Id. at 1381. The Memorandum's opaque language does not explain what authority exists to service connect alcohol abuse on a direct basis nor does it address the authority that prohibits direct service connection for alcohol abuse. It does provide that should PTSD be found, secondary service connection for alcohol abuse should be addressed. In the absence of any explanation regarding the legal authority to service connect alcohol on a direct basis, the Board concludes that the inconclusive reference to in-service trauma causing alcohol abuse is direction to further explore whether service trauma resulted in PTSD, which, in turn, resulted in alcohol abuse. This is especially so in light of the subsequent direction to explore the relationship between PTSD and alcohol abuse if PTSD is found. Thus, the Board will not pursue development of a claim for service connection for alcohol abuse on a solely direct basis. The Board observes that the record does not reveal any VA or private mental health treatment other than the records of Dr. JS, which were not obtainable despite multiple requests. However, the Veteran should be asked to identify any VA and private mental health treatment he may have received, particularly since the January 2008 supplemental statement of the case. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding VA and private treatment records, in particular those records dated after the January 2008 supplemental statement of the case, and to authorize release of such records if necessary. All requests and responses, positive and negative, should be associated with the claims file. 2. Develop and adjudicate the inferred claim of entitlement to service connection for alcohol abuse as due to PTSD. The development should include a VA examination to assess the existence and etiology of the alcohol abuse. At the examination, the claims file should be made available for review, and the examination report should reflect that such review occurred. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: a. Identify all appropriate diagnoses for the Veteran's psychiatric symptomatology. b. To the extent possible, the examiner should distinguish which symptoms the Veteran exhibits are due to his PTSD only and which symptoms are due to any other diagnosed psychiatric disorder, including alcohol abuse and any other substance abuse disorder. Additionally, a separate GAF score should be assigned to each diagnosed psychiatric disorder. If it is not possible to separate the symptoms this conclusion should be stated. If it is concluded that all of the Veteran's symptoms are attributable to alcohol abuse, or that none are attributable to PTSD, this finding must be supported by a complete medical rationale which identifies each symptom and explains how it is attributable only to alcohol abuse and not in any way to PTSD. The rationale must also address each of the opinions of record supplied by Dr. JM. c. With respect to any substance abuse disorder, including alcohol abuse, the examiner should opine as to the following: Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any substance abuse disorder, including alcohol abuse, is causally or etiologically related to, or been chronically worsened by the Veteran's PTSD, if PTSD is found to exist? A rationale for any opinion advanced should be provided. The examiner should also state what sources were consulted in forming the opinion. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated, to include all evidence received since the January 2008 supplemental statement of the case. If the claim remains denied, the Veteran and his attorney should be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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. 2010). _________________________________________________ MILO H. HAWLEY 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) (2010).