Citation Nr: 1311294	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  09-22 826	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a back disorder.

4.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder.

5.  Entitlement to service connection for substance abuse as secondary to an acquired psychiatric disorder.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from October 1990 to October 1992.

This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2006 and August 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. 

In the July 2006 decision, the RO denied the Veteran's service-connection claim for a back disorder, as well as other claims not under consideration in this opinion. In May 2007, less than a year following the July 2006 denial, the Veteran filed a statement asking to service connect back pain. The RO construed this as a claim to reopen the previously denied back pain claim, and required new and material evidence under 38 C.F.R. § 3.156 (2012). However, because the May 2007 communication was filed within the one-year time period for appealing decisions, the Board is construing it as a notice of disagreement (NOD) to the July 2006 decision. 38 C.F.R. §§ 20.200, 20.201, 20.302 (2012). Consequently, new and material evidence is not required, and the issue has been reframed above to reflect the distinction. This matter must be remanded, however, so that a statement of the case (SOC) can be issued, as will be discussed in more detail in the Remand section, below. Manlincon v. West, 12 Vet. App. 238 (1999).  

The Veteran's May 2007 statement also included a claim to service connect posttraumatic stress disorder (PTSD). This claim was denied in the August 2008 rating decision, along with service connection claims for bilateral hearing loss, tinnitus, and substance abuse secondary to PTSD, which had been filed in April 2008. 
A claim for PTSD necessarily entails the additional consideration of whether the Veteran is entitled to service connection for any acquired psychiatric disorder, as per the holding of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has reframed the issue on appeal as reflected above. This issue will be remanded for the provision of a VA examination. The Veteran's claim to service connect substance abuse secondary to an acquired psychiatric disorder will also be remanded because it is inextricably intertwined with the acquired psychiatric disorder claim; it cannot be addressed until the primary claim is decided. Harris v. Derwinski, 1 Vet. App. 180 (1991).

A review of the Virtual VA paperless claims processing system does not reveal any additional records that are pertinent to this claim.

The remanded issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. The Veteran does not have a current bilateral hearing loss disability.

2. The Veteran does not have tinnitus that is causally related to service.


CONCLUSIONS OF LAW

1. The Veteran does not have a bilateral hearing loss disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2. The Veteran does not have tinnitus due to disease or injury that was incurred or aggravated by active military duty. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).
  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board finds that the preponderance of the evidence is against findings that the Veteran has a hearing loss disability for VA purposes, and that his post-service tinnitus began during active service or is related to any incident of service. As a result, the Board denies the Veteran's claims for service connection for hearing loss and tinnitus.

The Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

 (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").







Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). 

A June 2008 VCAA letter explained the evidence necessary to substantiate the Veteran's claim for service connection for bilateral hearing loss and tinnitus. This letter also informed him of his and VA's respective duties for obtaining evidence. The letter was provided before initial adjudication of the claim in August 2008. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additionally the Veteran was advised of the manner in which effective dates and disability ratings are assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VA has a duty to assist in the development of the claim. This duty includes assisting in the procurement of service records, including personnel and medical, and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained his service treatment records (STRs) and post-service VA treatment records. The Veteran has not identified any private treatment records that he wished the RO to obtain.  
VA's duty to assist includes providing a VA examination and opinion where there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim." See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

A VA hearing examination was conducted in July 2008. The Board finds this examination report is adequate because it was conducted after a full review of the record and included all relevant tests. The Veteran has not made any allegations that his hearing loss has increased in severity since that examination, thus the Board finds that the report adequately conveys the current state of the disability. The mere passage of time is insufficient to require a new VA examination without some indication that the condition in question has changed in the interim. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007)

All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Service Connection for Bilateral Hearing Loss and Tinnitus

The Veteran alleges that he was exposed to hazardous noise due to drilling, gunfire, tanks and other weapons that made noise on a constant basis, which caused his hearing loss and tinnitus.

Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 
	
Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110 (2002). 

A disorder may also be service connected if the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997); see Barr v. Nicholson, 21 Vet. App. 303 (2007). To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465 (1994). 

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274 at 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing to its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. 

Instead, under 38 U.S.C.A. §§ 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition such as a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4.

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet.App. 518 (1996); Gilbert v. Derwinski, 1 Vet.App. 49 (1991). 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

A lack of evidence that a claimant exhibited hearing loss during service is not fatal to a claim for service connection. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court:

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.

Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary).

For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002).



The Veteran attended a VA examination in July 2008. An audiogram was given, and the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ


July 2008
500
1000
2000
3000
4000
RIGHT
15
15
20
25
30
LEFT
15
25
20
25
30

Speech recognition scores were 100 percent for each ear. The Veteran was diagnosed with mild, high frequency, sensorineural bilateral hearing loss and tinnitus. See VA examination dated July 21, 2008. 

Pursuant to 38 C.F.R. § 3.385, however, the Veteran does not have a current hearing loss disability for VA purposes. Without a current disability, service connection for hearing loss cannot be granted as a matter of law. 38 U.S.C.A. § 1110. Thus, the Board's analysis will proceed in regard to the Veteran's tinnitus.

The Veteran's personnel records indicate his primary specialty was fireman. See DD Form-214. He asserts that he was exposed to acoustic trauma during service. He has stated that such trauma came from machinery (see Statement dated March 26, 2008); tools and 45 caliber guns (see VA examination dated July 21, 2008); constant gunfire, tanks, and other weapons that made noise on a constant basis (see VA Form 9 received June 11, 2009); and, drilling on the hangar bay (see Statement dated August 19, 2010). He indicated his job during service was "drilling... were [sic] the drilling took place." See Statement dated August 19, 2010. He is competent to attest to his own experiences. Barr v. Nicholson, 21 Vet. App. 303 (2007). 

However, the Veteran's STRs are negative for complaints, treatment, or diagnosis of tinnitus. When he entered service, he did not indicate any past problems related to his ears. See Report of Medical History dated August 2, 1990. His ears were clinically evaluated as abnormal, however, it appears that the examining doctor scratched out the illegible explanation of why they were abnormal. See Report of Medical Examination dated August 2, 1990. Upon separation, the Veteran did not note any problems with his ears or hearing, and his ears were clinically evaluated as normal. See Reports of Medical History and Examination dated October 5, 1992. There are no other records from service that mention the Veteran's ears or tinnitus.

The first medical record that documents the Veteran's tinnitus is the July 2008 VA examination, over 15 years after discharge from active duty. Prior to that, one record specifically mentions that he has no hearing problems. See VA treatment record dated July 31, 2007.

At the July 2008 VA examination, the Veteran indicated that he notices his tinnitus when it is quiet at night, and that it does not disturb his sleeping. He further explained that he was only exposed to noise in the service, not in any of his post-service jobs or recreational activities. His tinnitus is intermittent, and he reported that its onset was after service. The VA examiner opined that his tinnitus was not related to service, in that he had normal hearing in service, no complaints of tinnitus in service or thereafter, and an onset following active duty service. See VA examination dated July 21, 2008. 

There is no other evidence of record that contradicts the VA examiner's opinion, except for the Veteran's assertion that his tinnitus is related to service. Although tinnitus itself can be identified by a layperson, Charles v. Principi, 16 Vet. App. 370 (2002), the Veteran has not been shown to have the medical or scientific expertise to render a competent opinion as to whether it is related to noise exposure in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Thus, while the Board assumes, without deciding, that the Veteran was exposed to acoustic trauma in service, the preponderance of the evidence is against a finding of service connection for the Veteran's tinnitus. As discussed above, the evidence does not show the Veteran to have a current hearing loss disability under 38 C.F.R. § 3.385.
 
Consequently, the benefit-of-the-doubt rule does not apply, and service connection for hearing loss and tinnitus will be denied. See 38 C.F.R. § 3.102 (2012); Gilbert, 1 Vet. App. at 55. 
ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.


REMAND

The remainder of the Veteran's claims must be remanded for further development.

With respect to the issue of entitlement to service connection for a back disorder, the Veteran submitted a timely NOD in May 2007 in response to the July 2006 rating decision that denied his claim. The RO, however, construed it as a claim to reopen a previously denied claim, which requires the receipt of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Although the issue has been readjudicated since the July 2006 rating decision, in those decisions the evidence was scrutinized under the higher standard applied to claims to reopen. Id. Therefore, this claim to service connect a back disorder must be remanded for the issuance of an SOC. See 38 C.F.R. §19.9(c) (2012); see also Manlincon v. West, 12 Vet.App. 238 (1999); Godfrey v. Brown, 7 Vet. App.398, 408- 410 (1995). The Board emphasizes that the Veteran must perfect his appeal in order to obtain appellate review of this claim. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012).

With respect to the issues of service connection for an acquired psychiatric disorder, and for substance abuse secondary to that, the evidence shows the Veteran was an inpatient at the Marion VA medical center for three months for substance abuse in 2010. Records from this inpatient treatment are not in the Veteran's claim files. Because there may be outstanding and relevant VA medical records, the RO must obtain these records. See 38 U.S.C.A. § 5103A (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Additionally, the identification and etiology of the Veteran's psychiatric condition requires further development. The Veteran has not had a VA psychiatric examination regarding this claim. VA's duty to assist includes providing a VA examination and opinion where there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service," but there is "insufficient competent medical evidence on file for the Secretary to make a decision on the claim." See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

The evidence shows the Veteran, during the pendency of this claim, has been diagnosed with anxiety disorder NOS, bipolar disorder, panic disorder, and adjustment reaction with mixed features. See VA treatment records dated May 22, 2007; January 27, 2009; and, March 10, 2009. Further, upon entrance into active duty, he indicated that he had a history of depression or excessive worry, although his psyche was clinically evaluated as normal. See Report of Medical History dated August 2, 1990. He has provided lay statements that he witnessed two of his friends commit suicide, which caused him to feel depressed, that he has bad dreams, and that he feels emotional pain due to the lives lost during Desert Storm. See VA Form 9 received June 11, 2009; Statement dated March 26, 2008. The evidentiary requirement for showing that a claimed disability is related to service is low, and the Veteran has met it, thus a VA examination is in order. See 38 U.S.C.A. § 5103A(d); McLendon, 20 Vet. App. at 83.

In regard to the substance abuse claim, service connection generally may not be granted for substance abuse on a direct basis. 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. There is a limited exception to this doctrine when there is "clear medical evidence" establishing that a claimed condition involving alcohol or drug abuse was acquired secondary to a service-connected disability, itself not due to willful misconduct. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Accordingly, the Veteran's substance abuse claim shall be addressed in the VA examination as well. Additionally, the claim to service connect substance abuse is a secondary claim, and as such, its resolution is inextricably intertwined with the Veteran's claim to service connect an acquired psychiatric disorder. The appropriate remedy in such a situation is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). 

Accordingly, the case is REMANDED to the RO/AMC for the following action:

1. The RO/AMC should issue a SOC to the Veteran, with a copy to his representative, addressing the Veteran's claim to service connect a back condition. The Veteran is advised that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim.  38 C.F.R. § 20.302(b) (2012).

2. The RO/AMC should contact the Veteran and request that he identify any additional treatment he has received for his back condition, acquired psychiatric disorder, and substance abuse disorder. The RO/AMC should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not already in the record on appeal, to include updated treatment records from the Indianapolis VAMC, and all records of the Veteran's inpatient treatment at the Marion VAMC in 2010. Efforts to obtain these records should be memorialized in the Veteran's VA claim file. If any such records cannot be found, of if they do not exist, the RO should request specific confirmation of that fact and make a formal finding of such unavailability.

3. Following completion of the foregoing, schedule the Veteran for a VA examination to determine whether he has a current psychiatric disability, including specifically anxiety disorder NOS, bipolar disorder, panic disorder, and adjustment reaction with mixed features, that had its onset or was aggravated during active service or was manifested as a psychosis within one year of active service, or is otherwise related to any incident of service, or to his service connected disabilities. The following considerations will govern the examination:

a. The claims folder, ANY RELEVANT ELECTRONICALLY FILED MEDICAL OR OTHER RECORDS IN "VIRTUAL VA" and a copy of this remand will be reviewed by the examiner.

b. After conducting any interview with the Veteran, review of the relevant evidence, and any appropriate clinical testing, the examiner must respond to the question of whether (1) the Veteran has an acquired psychiatric disorder, and (2) if one, or more, are diagnosed, whether it is directly related to the Veteran's active duty service.

c. If the Veteran does have an acquired psychiatric disorder that is directly related to his active duty service, then the examiner must respond to the question of whether (1) the Veteran has a substance abuse dependency, now or at any time during the pendency of this claim (since April 1, 2008), and (2) if so, whether it is clear that such dependency developed secondarily to any acquired psychiatric disorder that is directly related to service.

d. THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. 

THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT.

4. Following completion of the foregoing, and after undertaking any other development it deems necessary, the RO/AMC should review the Veteran's entire record, and readjudicate the Veteran's service connection claims. If the benefits sought on appeal remain denied, in whole or in part, the RO/AMC should provide the Veteran and his representative with a SSOC, and allow an appropriate time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order.

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. 2012).




______________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs