Citation Nr: 1321618 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 10-33 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1969. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which awarded service connection for PTSD and assigned an initial 50 percent evaluation effective September 2009. The Veteran testified at a Board hearing in October 2011. A March 2012 Board decision denied the claim for an increased rating for PTSD and remanded the claim of service connection for left ear hearing loss. Notably, the matter of service connection for left ear hearing loss has been resolved as, unbeknownst to the Board, an earlier March 2012 rating decision granted service connection for bilateral hearing loss. The Veteran appealed the denial of an increased rating for PTSD to the U.S. Court of Appeals for Veterans Claims (Court). By Order dated February 2013, the Court remanded that part of the March 2012 decision to the Board for compliance with the instructions included in a January 2013 Joint Motion for Partial Remand (JMR). 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 was noted in the Introduction, in a March 2012 decision, the Board denied the Veteran's claim for a rating in excess of 50 percent for his service-connected PTSD. The Court-endorsed JMR by the parties asserts that the Board failed to provide adequate reasons or bases as to why staged ratings are not warranted for the Veteran's service-connected PTSD; thus, the matter on appeal was remanded for the Board to readjudicate the claim and provide an adequate discussion of the applicability of staged ratings. While the Veteran's award of service connection was predicated upon his PTSD, he also has psychiatric diagnoses other than PTSD, such as alcohol and polysubstance abuse, personality disorder, hypomania, and dysthymic disorder. The Board recognizes that, under VA's governing regulations, alcohol and drug abuse in general constitutes willful misconduct for which disability benefits may not be granted. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3) (2012). 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 (Fed. Cir. 2001). Having thus established that alcohol abuse may under certain circumstances be considered in a claim for VA benefits, the Board finds that the psychiatric symptoms associated with each of those disorders and with any other diagnosed psychiatric disorder other than PTSD (such as hypomania and dysthymic disorder), must be addressed in determining whether to grant his claim for an initial higher rating. While mindful that the Veteran is not in receipt of service connection for any of those conditions, current VA law directs that all of his underlying psychiatric symptoms must be taken into account in determining his disability rating for PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, the Board is precluded from differentiating between the symptoms attributable to the Veteran's PTSD and those associated with his nonservice-connected mental health disorders absent clinical evidence that clearly shows such a distinction. Mittleider v. West, 11 Vet. App. 181 (1998). October 2009 and October 2010 VA examiantion reports show other psychiatric diagnoses in addition to PTSD. However, as these examination reports do not include opnions which differentiate between the symptoms attributable to the Veteran's PTSD and those associated with his nonservice-connected mental health disorders, they are not adequate for rating purposes. On remand, the Veteran should be scheduled for a new examination. The examiner should determine whether alcohol and polysubstance abuse is due to or aggravated by the Veteran's service-connected PTSD and should distinguish the symptoms of nonservice-connected psychiatric pathology (e.g., alcohol and polysubstance abuse, personality disorder, hypomania and dysthymic disorder) from service-connected PTSD so that the Veteran may be properly rated for the time period on appeal. Furthermore, it is noted that the record shows that the Veteran is in receipt of ongoing mental health treatment; however, the most recent treatment records available for review in both the physical claims file and in the computerized Virtual VA claims file is dated in March 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 that must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify the provider(s) of any additional mental health treatment or evaluation he has received which are not already associated with the claims file, and to provide any releases necessary for VA to secure any private records of such treatment or evaluation. The RO should obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. The RO should specifically obtain all VA mental health treatment records from March 2011 to the present. 2. Once the foregoing development has been accomplished to the extent possible, the RO should arrange for the Veteran to be examined by a psychiatrist (who should also conduct a review of the entire record) to assess the severity of the Veteran's PTSD from September 30, 2009, to the present. The examiner should identify and describe the nature, frequency, and severity of all current symptoms of the PTSD. The examiner should also specifically comment on: (a) Whether any psychiatric symptom shown is entirely due to a coexisting, nonservice-connected disability that may be distinguished from the service-connected PSTD. If so, the symptom and co-existing psychiatric disability should be identified, and any related impairment of function should be described in detail. If it is not possible to distinguish a coexisting, nonservice-connected disability from the service-connected PSTD, that should be so noted and a rationale as to why a determination is not possible should be provided. (b) Whether alcohol abuse and polysubstance dependence is secondary to or a symptom of the Veteran's service-connected PTSD, i.e., whether it is at least as likely as not that alcohol abuse and polysubstance dependence is proximately due or the result of the Veteran's service-connected PTSD and whether it is at least as likely as not that it is a symptom of, or evidence of an increased severity of, PTSD. (c) Whether there are (and identify) any distinct periods between September 30, 2009 and the present during which there was an exacerbation or remission of symptoms. (d) Whether the Veteran's PTSD precludes substantially gainful employment. The examiner must explain the rationale for the opinions given, citing to supporting clinical/special test findings. 3. After completion of the above, the RO should review the expanded record and readjudicate the Veteran's claim. Special attention should be given to the question of whether "staged ratings" are warranted at anytime during the period on appeal as discussed in the Joint Remand of the parties. The appellant and his representative should be furnished a supplemental SOC and be given the opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). _________________________________________________ ALAN S. PEEVY 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).