Citation Nr: 1321709 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 10-02 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a psychiatric disability to include a depressive disorder. 2. Entitlement to service connection for squamous cell carcinoma of the uvula, to include as secondary to inservice herbicide exposure and/or alcohol abuse. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1972, September 1975 to June 1981, and June 1981 to July 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that during the pendency of the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the issue of service connection for a depressive disorder has been recharacterized on the front page of this decision as service connection for a psychiatric disability to include a depressive disorder. The evidence on file raises the claim of service connection for alcohol abuse, claimed as secondary to a psychiatric disability. This raised claim has not been developed for appellate review and is referred to the RO for initial adjudication. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that the Veteran is afforded every possible consideration. The Veteran's representative contends that although the Veteran was afforded a VA psychiatric examination, it was inadequate because the examiner failed to discuss pertinent psychiatric findings which are contained in the service treatment records (STRs) and also mis-stated dates. In addition, the Board notes that while the examiner who performed the nose, sinus, larynx, and pharynx examination referred to an inservice diagnosis of post-traumatic stress disorder (PTSD), the psychiatric examination made no such reference or other pertinent findings. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A medical opinion is considered adequate where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). To be adequate, a medical opinion must do more than state a conclusion that the etiology of a medical condition, for example, is unknown or unknowable, the conclusion must be supported with sufficient rationale and explanation. Stefl, 21 Vet. App. At 124. The Court in Stefl explained some of the types of information that a factor might discuss in his or her opinion, even if ultimately inconclusive such as why the examiner finds cited studies persuasive or unpersuasive, whether the Veteran has other risk factors for developing the claimed condition, and whether the claimed condition has manifested itself in an unusual manner. Further, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board finds that the Veteran should be afforded a new VA psychiatric examination due to the inadequacies in the June 2009 examination. In particular, the examiner should make reference to all inservice psychiatric complaints, findings, treatment, and diagnosis, and opine if any current diagnosis had its onset during service or is otherwise related thereto. If a current diagnosis is not service-related, the examiner must fully explain the rationale for that determination. As noted in the Introduction, the Veteran's representative also essentially indicated that the Veteran's alcohol abuse, which began during service, was etiologically related to inservice psychiatric disability, as the service treatment records noted that the Veteran reported drinking excessively due to psychiatric symptoms/situations. The Board finds that the claim of service connection for alcohol abuse as secondary to psychiatric disability has been raised. In general compensation is not payable for disease or injury that is the result of a person's abuse of alcohol. 38 U.S.C.A. § 1110. This prohibition applies only to primary alcohol abuse disabilities and conditions that are secondary to primary alcohol abuse disabilities. Allen v. Principi, 237 F.3d 1368, 1375-6 (Fed. Cir. 2001). Compensation is not precluded for alcohol abuse disabilities that result from a service-connected disability. Id. at 1377. Thus, the matter of service connection for a psychiatric disability must be initially adjudicated and then the matter of secondary service connection for alcohol abuse, claimed as secondary to psychiatric disability should be considered. In addition, it was asserted that the Veteran's current cancer diagnosis was caused or in part caused by the alcohol abuse, consistent with the VA examiner's assessment in June 2009. The matter of service connection for squamous cell carcinoma of the uvula may be impacted by the outcome of the claim of entitlement to service connection for alcohol abuse. Therefore, the claims are inextricably intertwined. The Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As noted, the claim of service connection for a psychiatric disability must be initially readjudicated, then the matter of secondary service connection for alcohol abuse should be addressed, then and finally, the matter of service connection for squamous cell carcinoma of the uvula should be considered. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any current psychiatric disability, to include a depressive disorder and PTSD. The contact letter which informs the Veteran of the scheduled examination should be made a part of the record. Any indicated tests should be accomplished. The examiner should review the record prior to examination and fully review all inservice psychiatric complaints, findings, treatment, and diagnoses. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current diagnosis had its clinical onset during service or is related to any in-service disease, event, or injury. The examiner should then provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that alcohol abuse is proximately due to, or the result of, psychiatric disability. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that alcohol abuse is permanently aggravated by psychiatric disability. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 3. The AMC should then readjudicate the claims on appeal, to include the raised claim of service connection for alcohol abuse, in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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 2002 & Supp. 2012). _________________________________________________ K. PARAKKAL 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).