Citation Nr: 1128218 Decision Date: 07/28/11 Archive Date: 08/04/11 DOCKET NO. 08-35 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD), to include whether alcohol dependence is secondary to PTSD. REPRESENTATION Veteran represented by: Katrina J. Eagle, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD N. L. Northcutt, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1962 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April and July 2008 from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran and his daughter testified at a hearing via video-conference before the undersigned Veterans Law Judge in December 2009. A transcript of those proceedings has been associated with the Veteran's claims file. By way of background, the Board denied the Veteran's PTSD increased rating claim in a decision issued in January 2010. The Veteran appealed the Board's denial to the Court of Appeals for Veterans Claims (Court), and the Board's decision was subsequently vacated pursuant to a January 2011 Order granting the parties' Joint Motion for Remand (Joint Motion). The claim has now been returned to the Board for compliance with the mandates of the Joint Motion. The Board notes that the issue of alcohol dependency as secondary to PTSD, has been included in the issue in appellate status based on the Joint Motion's directive that the Board adjudicate this matter. As reflected in the Joint Motion, the parties agreed that this issue had been raised by the record in the context of the Veteran's PTSD increased rating claim and that it was therefore appropriate for the Board to conduct further development of this issue. While the Board is unclear as to the jurisdictional basis that would allow its assumption of this issue on appeal, as the issue has not been adjudicated in any RO action, the Board is nevertheless bound by the mandates of the Joint Motion instructing the Board to develop this issue on appeal. 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 Pursuant to the aforementioned Joint Motion, the parties' agreed that the Board's 2010 decision should be vacated and remanded to allow VA to obtain a new VA examination and related medical opinion. The parties agreed that the 2008 VA medical opinion was insufficient, and therefore the Board's reliance on this medical opinion when denying the Veteran's claim was prejudicial error. Specifically, the parties found that the Board's erred when determining that the VA examiner had parsed out the Veteran's PTSD symptoms from those of his alcohol dependency based on the examiner's assignment of a PTSD specific Global Assessment of Functioning (GAF) score, as the psychiatric examination portion of the report fails to specifically delineate the associated symptoms of each disorder. The parties also agreed that the VA examiner made inconsistent statements regarding the onset and etiology of the Veteran's alcohol dependency. Accordingly, the parties determined that a new examination and related medical opinion should be obtained. The Board further acknowledges that the Veteran's attorney has submitted a private medical opinion to the Board and waived not only RO initial review of this newly submitted evidence, but also asserted that with the addition of this newly submitted private medical opinion, the record is now sufficient for the Board to adjudicate the Veteran's claims, thus inferring a waiver of any development mandated by the Court's Order granting the parties' Joint Motion. However, the Veteran's attorney's request that the Board adjudicate the Veteran's claim, without first ensuring the completion of the development mandated by the Joint Motion, appears to have been predicated upon an assumption that the newly submitted medical opinion is sufficient to satisfy the Court-ordered directives that both a new psychiatric examination and medical opinion be obtained. As the private psychiatric opinion was made without the benefit of a psychiatric examination of the Veteran and does not reflect any current medical findings relevant to the current severity of the Veteran's PTSD, the claim must nevertheless be remanded for compliance with the mandates of the Joint Motion. Additionally, any outstanding VA treatment records should be obtained and associated with the Veteran's claims file. 38 C.F.R. § 3.159(c)(2) (2010). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an appropriate notice letter that the Board will be developing the issue of whether alcohol dependence is secondary to service-connected PTSD, and advising him of VA's duties to notify and assist with regard to this issue. 2. Obtain the Veteran's VA treatment records from September 2009 to the present. 3. Then, the Veteran should be scheduled for an appropriate VA examination to address the severity of the his service-connected PTSD and the potential relationship between his PTSD and alcohol dependence. The examiner should review the Veteran's claims folder in conjunction with the examination, including the results of the Veteran's 2008 VA examination and the 2011 private medical opinion and report, and offer a complete rationale for any opinion expressed. After conducting a psychiatric examination of the Veteran, the examiner should separate, if possible, the effects of the Veteran's mental health disabilities, including alcohol dependency, from the Veteran's service-connected PTSD. Furthermore, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's alcohol dependence is proximately due to, the result of, or aggravated by his service-connected PTSD. The examiner should also offer an opinion as to whether the Veteran's PTSD renders him unemployable. 3. Then, re-adjudicate the Veteran's claims. If the full benefit sought with regard to the appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the 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. 2010). _________________________________________________ MICHAEL E. KILCOYNE 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 your appeal. 38 C.F.R. § 20.1100(b) (2010).