Citation Nr: 1124202 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 05-32 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for peripheral neuropathy of the right lower leg. 3. Entitlement to special monthly pension (SMP) based on the need for aid and attendance. 4. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions occurring at the Mountain Home VA Medical Center (VAMC) on January 13, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a decision dated January 2009, the Board denied multiple claims including the Veteran's claims of entitlement to service connection for alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse, service connection for peripheral neuropathy of the right leg and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions. The Board remanded issues of entitlement to service connection for PTSD and entitlement to SMP for further evidentiary development. An RO rating decision dated September 2010 granted service connection for PTSD, and assigned an initial disability rating of 30 percent effective October 24, 2003. As the Veteran has not appealed the rating or effective date assigned for this disability, this represents a complete grant of the Veteran's appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) those issues which had been denied by the Board in the January 2009 decision. In a Memorandum Decision dated January 2011, the Court upheld the Board's denial of claims involving service connection for a right knee disability, a stomach condition and tinea pedis. The Court vacated the Board's decision regarding the issues of service connection for alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse, service connection for peripheral neuropathy of the right leg and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions for consideration of additional matters. 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 In the January 2009 decision, the Board denied the Veteran's claim of alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse on the basis that such disorders resulted from his voluntary use of drugs and alcohol, for which service connection is forbidden by law. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.301; Allen (William F.) v. Principi, 237, F.3d. 1368 (Fed. Cir. 2001). In the January 2011 Memorandum Decision, the Court held that the Board should have deferred consideration of this issue pending adjudication of the claim of service connection for PTSD. In this respect, the Court interpreted the evidence of record to suggest a possible link between PTSD and substance abuse, though this is not clear. Similarly, the Court indicated that the claim of service connection for right lower extremity neuropathy should also be deferred as the record included opinion that this disorder was secondary to alcohol abuse. As indicated in the Introduction section, the RO granted service connection for PTSD following the Board's remand. This raises a secondary service connection issue which must be considered part and parcel of the current appeal. See Bingham v. Nicholson, 421 F.3d 1346 (2005). As the Court has found evidence of a "possible" link between PTSD and alcohol abuse, the Board finds that medical opinion is necessary to decide this claim. 38 U.S.C.A. § 5103A(d). The Court also remanded to the Board the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions finding that further information was required regarding the standard of care and VA's usual procedures for discharging patients from detoxification programs in light of the Veteran's history of seizure activity. This issue, therefore, is remanded to address the concerns raised by the Court. Finally, the Veteran seeks entitlement to SMP based on the need for aid and attendance. This issue was remanded by the Board in January 2009 for medical examination and opinion, which has been accomplished by the RO. It is alleged by the Veteran and his spouse that he has manifested several seizure episodes with multiple falls which medical opinion has attributed to alcohol withdrawal. At this time, the Board will defer consideration of the SMP claim pending adjudication of the issue of entitlement to service connection for alcohol dependence. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding establishing service connection on a secondary basis pursuant to 38 C.F.R. § 3.310. 2. Obtain complete records of the Veteran's treatment at the Mountain Home VAMC since March 2009. 3. Upon completion of the above, forward the Veteran's claim folder to an appropriate examiner for preparation of a medical opinion addressing the issue of whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's bilateral hematoma and multiple cerebral contusions which occurred at the Mountain Home VAMC on January 13, 2006 was a) caused by carelessness, negligence, lack of proper skill, error in judgment, or similar fault on the part VA in furnishing hospital care, medical treatment, or examination, OR b) caused by an event not reasonably foreseeable. In providing such an opinion, the examiner is requested to identify the standard of care and VA's usual procedures for discharging patients from detoxification programs including whether such standard of care was met when allowing the Veteran to remain unsupervised for 25 minutes after he was formally discharged in light of his history of seizure activity. The examiner must be advised that, by regulation, whether the cause of the Veteran's additional disability resulting from his fall was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseen or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The examiner is requested to provide a complete rationale for his/her opinion, as a matter of medical probability, based on experience, medical expertise, and established medical principles. If the requested opinion cannot be provided on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewing physician should clearly and specifically so specify and explain why this is so. 4. Schedule the Veteran for VA psychiatric examination to determine the causal relationship between service-connected PTSD and alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse. The claims folders must be made available to the physician for review. The examiner should be requested to answer the following questions: a) provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's PTSD caused alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse or aggravated such disorders beyond the natural progress of the disorder; and b) if it is determined that aggravation beyond the natural progress of disorder exists, please identify the baseline level of severity of symptoms prior to aggravation and the level of severity of symptoms due to service-connected aggravation. The examiner is requested to provide a complete rationale for his/her opinion, as a matter of medical probability, based on experience, medical expertise, and established medical principles. If the requested opinion cannot be provided on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewing physician should clearly and specifically so specify and explain why this is so. 5. Thereafter, readjudicate the claims of a) entitlement to service connection for alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse, to include as secondary to service-connected PTSD; b) entitlement to service connection for peripheral neuropathy of the right lower leg; c) entitlement to SMP based on the need for aid and attendance; and d) entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions occurring at the Mountain Home VAMC on January 13, 2006. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. The appellant 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. 2009). _________________________________________________ JOHN J. CROWLEY 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).