Citation Nr: 1318474 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-35 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for alcohol abuse secondary to service-connected posttraumatic stress disorder (PTSD) and major depressive disorder. 2. Entitlement to an initial disability rating in excess of 30 percent for PTSD and major depressive disorder. 3. Entitlement to a rating in excess of 10 percent for service connected closed head injury, now claimed as a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from June 1985 to September 1985, December 1990 to April 1991, and from October 2004 to December 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A June 2009 Board decision remanded the PTSD claim for additional development. On remand, in a February 2010 rating decision, the RO granted entitlement to service connection for major depressive disorder and combined the disability with the evaluation of PTS D. A May 2010 Board decision reclassified the issue on appeal as entitlement to an initial disability rating in excess of 30 percent for PTSD and major depressive disorder and denied a rating in excess of 30 percent for that disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order in October 2010, the Court granted a Joint Motion for Remand and vacated the Board's decision for compliance with the instructions in the Joint Motion. In September 2011, the Board issued a second decision denying a rating in excess of 30 percent. The Veteran appealed that decision to the Court. In a July 2012 Decision, the Court reversed and remanded the Board's decision for compliance with the instructions set forth in the decision. 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 As noted above, in February 2012, the United States Court of Appeals for Veterans Claims (Court) set aside the Board's decision of September 2011 and remanded for readjudication in compliance with the directives specified. The Court directed the Board to adjudicate whether the Veteran's alcohol use is secondarily caused by his service connected health disabilities. Under VA's governing regulations, alcohol and drug abuse in general constitutes willful misconduct. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). Service connection cannot be granted for drug and alcohol-related conditions as a primary disability. See 38 U.S.C.A. §§ 105, 1110, 38 C.F.R. §§ 3.1(n), 3.301(d). Nevertheless, alcohol dependence, or another disability resulting from substance abuse, may warrant VA compensation where such abuse is secondary to, or as a symptom of, a service- connected disorder. Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001). There must be clear medical evidence establishing that the alcohol or drug abuse is caused by a Veteran's primary service-connected disability, and the alcohol or drug abuse disability is not due to willful wrongdoing. Allen 237 F. 3d. at 1381. The Board finds that this is a medical determination and the Board cannot make this determination on its own. Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (the Board must consider independent medical evidence to support its findings rather than provide its own medical judgment). There has not been any medical opinion that addressed whether the Veteran has suffered alcohol abuse secondary to his service-connected PTSD and major depressive disorder. The Board has therefore determined that this matter must be remanded to obtain the medical evidence necessary to make a decision. Moreover, this matter must be adjudicated by the RO in the first instance, prior to appellate review. Bernard v. Brown, 4 Vet. App. 384 (1993) [when the Board addresses in a decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby]. The Board has also determined a remand is necessary to determine the current level of severity of the Veteran's service-connected PTSD and major depressive disorder and to address points raised by the Court in its February 2012 decision. Specifically, the Court directed the Board to further consider the nature and severity of symptoms of memory loss in the Veteran, that is, whether it is a mild memory loss as opposed to an attenuated long and short term memory loss. Therefore, on remand, the examiner should set out how memory was tested, the results of that testing, an interpretation of the results, and a discussion on the nature and severity of any memory loss residual by the Veteran. The Court also determined that the Board did not adequately discuss its finding that the Veteran does not have impaired judgment. The VA examiner in April 2011 counseled the Veteran to seek further medical evaluation for elevated liver enzymes, but there does not appear to be any follow-up by the Veteran based upon the medical evidence associated with the file. The Court observed that the Veteran, a registered nurse, would know of the importance of such counseling, but his apparent failure to seek further medical care possibly indicates impaired judgment. Accordingly, if the examiner determines the Veteran's judgment is not impaired, he is asked to explain the reasons and basis for this determination. As to the claim for a higher rating for the TBI disability, in a January 2013 rating decision, the RO continued the 10 percent rating for the Veteran's TBI disability. Although no notice of disagreement appears in the file, a February 2013 letter by the RO clearly states that the Veteran has expressed disagreement to the January 2013 rating decision. As the RO has not issued a statement of the case addressing the claim, the Board is required to remand the claim. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a VA mental health examination to determine the current nature and severity of the Veteran's service-connected PTSD and major depressive disorder. The claims file must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. A complete rationale for all opinions must be provided. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of his PTSD as well as a separate discussion of the history, current complaints, and the nature and extent of his major depressive disorder, including the frequency, duration, intensity, onset of any change in symptoms, and functional effects of symptoms such as, but not limited to, anger, memory loss, and impaired judgment. If feasible, the examiner should specifically include a GAF score due solely to the PTSD and a GAF score for the major depressive disorder. All signs and symptoms of the Veteran's PTSD should be reported in detail, and the examiner should describe the impact of the Veteran's PTSD on his occupational and social functioning. In a similar manner, all signs and symptoms of the Veteran's major depressive disorder should be reported in detail, and the examiner should describe the impact of the Veteran's major depressive disorder on his occupational and social functioning. The examiner is asked to determine nature and severity of symptoms of memory loss in the Veteran and set forth all testing, the results of that testing, and an interpretation of the results. The examiner is asked how judgment is determined to be impaired or intact, and whether the Veteran's judgment is impaired or intact, setting forth the reasons and basis for the opinion. If feasible, the examiner is asked how the determinations were made in past VA examinations and evaluations. The examiner is specifically asked to address the April 2011 VA examination where the examiner counseled the Veteran to seek further medical evaluation for elevated liver enzymes, but there does not appear to be any follow-up by the Veteran, a registered nurse. The examiner is asked to determine whether it is at least as likely as not (50 percent probability) that the Veteran's use of alcohol was the result of, or chronically aggravated by, the Veteran's service-connected PTSD and/or major depressive disorder. The examiner is asked to consider service connection is in effect for PTSD and major depressive disorder. The examiner is also asked to consider that a Veteran may be service connected for an alcohol abuse disability or another disability caused by alcohol abuse if secondary to or as a symptom of a service-connected disability. In order to qualify for service connection, clear medical evidence must establish that the alcohol abuse disability was secondary to, caused by, or aggravated by a service-connected disability, and that it is not due to willful wrongdoing. The examiner is also asked to consider a lay person is competent in describing symptoms at the time which supports a later diagnosis by a medical professional. Lay evidence concerning both occurrence and continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. The examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. If however after a review of the record, any requested opinion is not possible without resort to speculation, the VA examiner is asked to clarify whether the opinion cannot be determined because the limits of medical knowledge had been exhausted or instead further information to assist in making the determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data is required that might reasonably illuminate the medical analysis. 2. After the development requested is completed, adjudicate the claim for a higher initial evaluation for PTSD and major depressive disorder, and entitlement to service connection for alcohol abuse as secondary to service-connected PTSD and major depressive disorder. If a higher initial evaluation for PTSD and major depressive disorder remains denied, furnish the Veteran and his attorney a supplemental statement of the case and return the matter to the Board. If entitlement to service connection for alcohol abuse as secondary to service-connected PTSD and major depressive disorder is denied, furnish the Veteran and his attorney a statement of the case and afford the appropriate period to complete an appeal to the Board as to such issue. 3. Associate with the file the notice of disagreement referenced in the February 2013 letter. Furnish the Veteran and his attorney a statement of the case on the claim for a rating higher than 10 percent for a traumatic brain injury as denied in the January 2013 rating decision. In order to perfect an appeal of the claim, the Veteran must still timely file a substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ U.R. POWELL 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).