Citation Nr: 1317387 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 03-12 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a psychiatric disability, claimed as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1967 to October 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Phoenix RO (which declined to reopen the matters of service connection for a back condition and cervical spine degenerative disc disease, denied service connection for major depressive disorder, and denied a compensable rating for right shoulder scar). The Veteran requested a Travel Board hearing; he failed (without giving cause) to report for such hearing on the scheduled date in February 2005. This matter was previously before the Board and remanded in August 2006, August 2009 (when the Board also denied a compensable rating for right shoulder scar and reopened and remanded the claims of service connection for a back disorder and cervical disc disease), February 2011, and September 2012 (when the Board also granted service connection for a back disorder and cervical disc disease). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. REMAND The Veteran seeks service connection for a psychiatric disorder, to include as secondary to his service connected disabilities (back disorder, cervical disc disease, and right shoulder laceration). As noted in the September 2012 Board remand: A June 2002 statement by a VA psychiatrist who had been treating the Veteran since July 2001 states that the Veteran "suffers from major depressive disorder, recurrent, manifested by insomnia, low energy, depressed mood, and loss of interest in prior activities. In addition, he suffers from anxiety disorder not otherwise specified (mixture of social anxiety and claustrophobia)." The psychiatrist opined that the Veteran's "depression is directly caused, in large part, by his chronic pain and lifestyle limitations from his degenerative disc disease, including herniated discs, of his back and neck." This opinion is inadequate for rating purposes because it is conclusory, without explanation of rationale. Furthermore, the language used, i.e., "directly caused, in large part" suggests that only part of the disability may be related to the now service-connected back and neck disorders, requiring clarification by a medical provider. The September 2012 Board remand sought a psychiatrist's clarifying opinion in this matter, which was obtained in November 2012. The November 2012 VA examination report shows a diagnosis of alcohol dependence. The examiner noted the Veteran's prior psychiatric diagnoses (major depressive disorder, anxiety disorder, alcohol dependence, depressive disorder NOS (not otherwise specified), and rule out alcohol induced mood disorder); however, on examination the Veteran did not report symptoms of emotional distress and did not present with any emotional distress. Thus, he did not meet full DSM-IV (American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition) criteria for a diagnosis of either a depressive disorder or anxiety disorder. The Veteran did meet the DSM-IV criteria for a diagnosis of alcohol dependence. The examiner noted the Veteran's service-connected right shoulder laceration and lumbar and cervical spine disabilities, his history of heavy drinking from the age of 19, and opined that it is at least as likely as not that the alcohol dependence was aggravated by the Veteran's service-connected disabilities. In a February 2013 addendum, the examiner explained the rationale for this opinion as (1) the Veteran stated that a reason for his drinking alcohol is to deal with his physical condition and (2) June 2002 medical records indicate chronic pain as a factor in the Veteran's mental health treatment. [Notably, the examiner did not discuss whether the Veteran's depressive disorder and anxiety disorder had resolved. Governing caselaw provides that for purposes of establishing service connection, the requirement of a current disability is met if such chronic disability is manifested at any time during the pendency of a claim.] Regarding alcohol dependence, governing caselaw provides that that, while compensation is not payable for disability due to alcohol or substance abuse where such is the result of willful misconduct or abuse of alcohol or drugs, a veteran is not precluded from receiving compensation for disability due to alcohol or drug abuse where such is secondary to (a symptom of) a service-connected disability. See El-Amin v. Shinseki, 26 Vet App 136 (2013), quoting Allen v. Brown, 7 Vet. App. 439, 448 (1995) (any additional impairment of earing capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition, shall be compensated) (emphasis in original). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995)(en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred. The addition of 38 C.F.R. § 3.310(b) effective October 10, 2006, does not affect the consideration or the outcome of this case. It was added to implement the decision of the Court in Allen v. Brown, 7 Vet. App. 439 (1995), and the holding in that case has been binding on VA from the time of issuance in 1995. The November 2012 VA examination report and medical opinion and the February 2013 addendum do not identify a baseline level of severity of alcohol dependence prior to when aggravation occurred and the level of increased such disability after aggravation occurred. The addendum states that baseline symptomotology cannot be povided because "[i]t has been so long in the past (over 40 years ago)", "[n]o records from that time are available", and "[t]he Veteran denies he has a problem with alcohol." Regarding the absence of treatment records to establish a baseline level of severity, the September 2012 Board remand requested that the Veteran identify the providers of any mental health treatment or evaluation he has had and provide releases for VA to secure any private records of such evaluation or treatment. He has not responded. As further development of this claim cannot proceed without his cooperation, the Veteran should be provided another opportunity to provide the information and/or evidence requested. The Veteran is advised that a governing regulation provides that where evidence requested in connection with a claim for VA benefits is not received within a year of the request, the claim will (emphasis added) be considered abandoned. See 38 C.F.R. § 3.158(a). He is further advised that under 38 C.F.R. § 3.159(c)(1), VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, but that ultimately it is his responsibility to ensure that any private records are received. See also Wood v. Derwinski, 1 Vet. App. 190 (1991) If the Veteran responds, another examination to establish a baseline level of severity of alcohol dependence disability prior to when aggravation occurred and the level of increased such disability after aggravation occurred will be necessary. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify the providers of any(and all) alcohol abuse/mental health treatment or evaluation he has had and to provide releases for VA to secure any private records of such evaluation or treatment. The RO should obtain complete clinical records of all such treatment and evaluation from all sources identified by the Veteran. The RO must specifically secure for the record any updated VA treatment records that are not already associated with the claims file (or in Virtual VA). The Veteran should be notified if any private records identified are not received pursuant to the RO's request (and reminded that ultimately it is his responsibility to ensure that private records are received). 2. If, and only if, the Veteran responds to the request to identify (and provide releases for records of) the providers of any alcohol abuse/ mental health treatment or evaluation he has received, the RO should arrange for the Veteran to be examined by a psychiatrist to determine whether he has an alcohol dependence psychiatric disability that is either directly related to his service or was caused or aggravated by his service-connected right shoulder laceration and lumbar and cervical spine disabilities. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on examination and file review, the examiner should provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each psychiatric disability entity found and, for each diagnosis, indicate the likely date of clinical onset and whether it has resolved or is an ongoing disability. The diagnoses addressed must include the diagnosis of alcohol dependence made by the November 2012 VA examiner (with February 2013 addendum). (b) As to each psychiatric disability entity diagnosed, based on the factual evidence of record, please express an opinion regarding the likely etiology of such disability, specifically, whether it is at least as likely as not (a 50% or better probability) that the disability is directly related to the Veteran's service/an event therein, or was caused or aggravated by (increased in severity due to) his service connected right shoulder laceration and lumbar and cervical spine disabilities? (c) If any psychiatric disability is determined to not have been caused, but to have been aggravated by, the Veteran's service connected disabilities, please identify the baseline degree (symptoms and their severity) of psychiatric disability existing prior to when the aggravation occurred and the level of disability existing after the aggravation. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The explanation must include comment on the June 2002 statement by the Veteran's treating VA psychiatrist and the opinions expressed in the November 2012 VA examination report and February 2013 addendum, expressing agreement or disagreement with each and explaining the rationale for the agreement or disagreement. 3. The RO should then re-adjudicate the claim. If it 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 matter 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 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).