Citation Nr: 1237128 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-26 451 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1968 to March 1970 and from December 1983 to April 1989. (His discharge from the second period of service was upon Special Court Martial for misconduct and that period of service has not been found qualifying for VA compensation benefits.) These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Chicago, Illinois RO in January 2006 (regarding bilateral hearing loss and tinnitus) and in August 2008 (which granted service connection for PTSD, rated 50 percent). The Veteran also initiated an appeal of a January 2006 rating decision which denied service connection for prostate cancer. A September 2011 rating decision granted service connection for prostate cancer, and that matter is no longer on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran was discharged from his second period of active duty service (from December 1983 to April 1989) upon Special Court Martial for "bad conduct" (misconduct). When there is a discharge under conditions other than honorable, as a threshold matter prior to consideration of a claim for VA benefits, there must be an Administrative Decision as to whether or not the character of discharge for the other than honorable period of service is dishonorable (and a bar to VA benefits except for health care under Chapter 17, Title 38, United States Code). A review of the record in the instant case (including the paper claims file and Virtual VA), did not find such Administrative Decision regarding the appellant's 1983 to 1989 service. Additionally, in August 2011 the Veteran was afforded a VA audiological examination when it was noted that the Veteran was discharged from active duty in 1970 "and from the Reserves in 1984". This is inaccurate (see discussion above regarding 1983-1989 service) and, as the opinion is based upon an incorrect history, the examination/opinion offered is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). After the RO's Administrative Decision regarding the character of discharge for the Veteran's second period of active duty service, an examination that takes into account the accurate qualifying period(s) of service will be necessary. The Board notes that the Veteran has been assigned psychiatric diagnoses other than PTSD (alcohol abuse, dependence, alcohol amnestic syndrome, mood disorder, and dementia) which are not service-connected. While symptoms/impairment due to disability that is not service-connected generally may not be considered in rating a psychiatric disability, governing caselaw provides that where it is not possible to distinguish the effects of a nonservice-connected disability from those of the service-connected disability being rated, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App, 181 (1998). Furthermore, in an October 2012 statement the Veteran's representative contends that the Veteran suffers from alcohol dependence secondary to his service-connected PTSD. The representative cites a March 2009 VA treatment summary letter wherein the treating psychiatrist states that the Veteran began drinking when he entered the Navy and started drinking heavily (self-medicating) after his experiences in Vietnam. While primary alcoholism and its effects are not compensable disabilities, governing caselaw provides that alcoholism that is a symptom of a psychiatric disability such as PTSD may be considered in rating the service-connected disability. Allen v. Principi, 237 F. 3d 1368, 1381 (Fed. Cir. 2001). Compensation will only result where there is clear medical evidence establishing that the alcohol abuse disability was caused by the primary service-connected disability. Id. Notably, on January 2009 VA neuropsychological examination, the diagnoses were dementia, probable mixed, Alzheimer's type and remote history of alcohol dependence. The examiner opined that the Veteran's neuropsychological profile indicated global cognitive deficits suggestive of likely Alzheimer's Type Dementia as well as decline of cognition related to history of chronic alcohol addiction. On March 2011 VA mental health examination, the diagnosis was mild PTSD with symptoms in remission, and dementia, likely Alzheimer's type. The examiner opined that the Veteran's PTSD symptoms cause mild impairment in his social and work functioning, and the dementia causes moderate to severe impairment in the Veteran's work functioning and moderate impairment in his social functioning due to short term memory problems, poor concentration and focus, and cognitive slowing and confusion. The examiner opined that the dementia is a separate condition that is not related to PTSD or the Veteran's military service, and assigned separate GAF scores (62 for PTSD and 50 for dementia). The March 2011 VA examiner did not adequately address the allegation that the Veteran's alcoholism stems (at least in part) from self-medicating for PTSD, or the suggestion raised by the medical evidence that the alcoholism contributed (at least in part) to the Veteran's current dementia. Furthermore, a review of the claims file found that the most recent VA treatment records in evidence are from September 2011. Records of any subsequent VA mental health treatment/evaluation are pertinent (and perhaps critical) evidence to the Veteran's claim for an increased rating for PTSD and are constructively of record. Accordingly, further development for such records is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for any development necessary, and then issue an Administrative Decision addressing whether the Veteran's "Bad Conduct (other than honorable) Discharge" for the period of service from December 1983 to April 1989 is or is not a bar to his receipt of VA compensation benefits based on that period of service. The Veteran should be advised of the determination (and of his appellate rights as to any negative decision). He should be further advised that this matter is not before the Board (and will only be before the Board if he timely perfects his appeal following notice of disagreement and issuance of a statement of the case as to any negative decision in the matter). 2. The RO should secure for the record copies of the complete updated (since September 2011) clinical records of any VA treatment the Veteran has received for psychiatric disability, hearing loss or tinnitus. 3. The RO should then arrange for an evaluation of the Veteran (to include audiometric studies) by an otologist or audiologist to determine conclusively whether or not he has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so the likely etiology for such disability (specifically whether it is related to his service). The Veteran's claims file (to include this remand) must be reviewed by the examiner in conjunction with the examination. The factual data considered should take into account the RO's Administrative Decision regarding whether or not the Veteran's service from 1983 to 1989 is qualifying service for VA compensation benefits. Based on a review of the record and examination/interview of the Veteran, the examiner must offer opinions that respond to the following: (a) Does the Veteran have a hearing loss disability as to each ear as defined in 38 C.F.R. § 3.385? (b) Is any hearing loss disability found at least as likely as not (a 50 % or better probability) related to the Veteran's acknowledged exposure to noise trauma in service (in his MOS as an engineman). [If the Veteran's service from 1983 to 1989 is found to not be qualifying for VA compensation benefits, only his first period of service should be considered as a possible etiological factor.] The examiner must explain the rationale for the opinion in detail; if the opinion is to the effect that the hearing loss is unrelated to service, the explanation should identify other (considered more likely) possible etiologies for the hearing loss. 4. The RO should then also arrange for the Veteran to be examined by an appropriate psychologist or psychiatrist to determine the current severity of his PTSD. The Veteran's claims file (including this remand) must be reviewed by the examiner in connection with the examination, and the examiner must also be provided a copy of the criteria for rating mental disorders. Findings reported must include notation of the presence or absence of each symptom noted in the criteria for ratings above 50 percent. The examiner must opine regarding the Veteran's history of alcohol abuse, indicating (with explanation that cites to supporting factual data and/or medical literature) whether or not the Veteran's alcohol abuse is secondary to (caused or aggravated by) his PTSD. If the examiner finds that the Veteran's alcohol abuse is not secondary to his PTSD, but is a primarily disability, the examiner must, to the extent possible, distinguish the symptoms that are due to PTSD from those due solely to the co-existing disability due to alcohol abuse (or other co-existing and nonservice-connected psychiatric disability, such as Alzheimer's). The examiner must explain the rationale for all opinions. 5. The RO should then re-adjudicate the claims on appeal (to include whether referral for consideration of an extraschedular rating for PTSD is warranted). If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George R. Senyk 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) (2012).