Citation Nr: 1328887 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 11-32 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for Type II Diabetes Mellitus. 2. Entitlement to a disability rating higher than 50 percent for depressive disorder, not otherwise specified (NOS). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty in the military from June 1977 to April 1993. He appealed to the Board of Veterans' Appeals (Board/BVA) from February and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Service connection for diabetes was initially denied in an earlier June 2003 rating decision. The Veteran perfected a timely appeal of that prior decision, but then withdrew the appeal of this claim in an April 2007 statement. See 38 C.F.R. § 20.204 (2012). Nevertheless, he also had submitted statements during the appeal period, one in June 2004 and another in December 2004, asserting that within one year of his separation from service the Army National Guard had found him disqualified for further service based on the results of an examination showing elevated glucose levels. Under 38 C.F.R. § 3.156(b) (2012), if new and material evidence is received prior to an appellate decision if a timely appeal has been filed, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period," and thus prevents an initial determination from becoming final and binding. "New" evidence means evidence not previously submitted to agency decision makers, and "material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran's statements asserting that elevated glucose levels were detected within one year of the conclusion of his active military service, during an examination for the Army National Guard, constitute new and material evidence. At the time of the June 2003 rating decision, these statements were not of record and, thus, are new to the claim for diabetes. Moreover, they related to an unestablished fact necessary to substantiate this claim and raise a reasonable possibility of substantiating it. Specifically, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime after December 31, 1946, service connection for certain chronic diseases, including diabetes mellitus, may be established on a presumptive basis by showing the disease manifested to a compensable degree (meaning to at least 10-percent disabling) within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307; 3.309(a) (2012). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Thus, as the Veteran's statements would help support a showing that his diabetes had manifested to the required compensable degree within one year of his separation from service, especially given the purported proximity in time between the detection of elevated glucose levels and the conclusion of his service, they raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a "low threshold"). In this regard, for the purpose of determining whether new and material evidence has been submitted, the credibility of these statements is presumed - unless they are inherently incredible or beyond the competence of the person making them, which they are not. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, because the Veteran's June and December 2004 statements were submitted during the appeal period after submitting a timely appeal, but before an appellate decision was rendered on this claim, also before he supposedly withdrew this claim, the June 2003 rating decision is not a final and binding determination, so this claim for diabetes does not have to be reopened before being readjudicated on its underlying merits. See 38 C.F.R. § 3.156(b). See also Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). All of the claims nevertheless require further development before being decided on appeal, so the Board is remanding them to the RO. REMAND With regards to the Veteran's claim of entitlement to service connection for diabetes (and, specifically, Type II, i.e., the adult-onset variety), a remand is necessary to obtain the National Guard records purportedly showing he had elevated glucose levels within one year of his separation from active duty service. With regards to his increased-rating claim for his depressive disorder, NOS, another VA compensation examination and opinion are needed reassessing the severity of this service-connected disability. He last underwent a VA compensation examination for this disability in June 2010, so more than 3 years ago. Consequently, that examination may not reflect the current severity of this disability, requiring reexamination. See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of Veteran's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). Moreover, that examiner stated in the examination report that he was unable to ascribe a specific degree of impairment to the Veteran's service-connected depressive disorder as opposed to his history of substance abuse without resorting to speculation. Disability resulting from alcohol or drug abuse, since it is willful misconduct, generally cannot be service connected. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.303(c)(3) and (d). Indeed, VA's General Counsel has confirmed that direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is precluded for purposes of all VA benefits for a claim, as here, filed after October 31, 1990. See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). There is just a very limited exception to this general rule. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Here, service connection for a substance abuse disorder secondary to the Veteran's depressive disorder has not been established. See 38 C.F.R. § 3.310 (2012) (providing that service connection may be established for a disability caused or aggravated by a service-connected disability). This notwithstanding, the examiner did not provide any explanation for why he was unable to assess how the Veteran's depressive disorder impacts his daily and occupational functioning independent of his substance abuse without resorting to speculation, and in fact did not provide an opinion addressing the degree of occupational impairment at all. According to 38 C.F.R. § 4.2 (2012), when an examination report does not contain sufficient detail to make an informed decision, it is incumbent on the rating board to return the report as inadequate for evaluation purposes. Accordingly, a new VA psychiatric examination is warranted for this reason, as well. Further, on a June 2010 VA Form 21-4142, the Veteran identified records concerning a disability determination by the Social Security Administration (SSA) pertaining to his mental health in January and May 2009, and his physical heath in June 2010. When, as here, VA is put on notice of existing SSA records that may be relevant to the VA claim, VA has a duty to acquire a copy of the decision granting Social Security disability benefits and the supporting medical documents on which the decision was based. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.152(c)(2) (2012). Thus, on remand, the RO should make appropriate efforts to obtain these additional records. See, e.g., Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (emphasizing that VA need only obtain relevant SSA records, which, according to 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim). The record on appeal also shows the Veteran has participated in a VA vocational rehabilitation program. As his vocational rehabilitation records also may be relevant in reassessing the severity of his depressive disorder, the RO also should obtain these records. 38 C.F.R. § 3.159(c)(2). The TDIU claim is "inextricably intertwined" with the claim for a higher disability rating for the depressive disorder, NOS, particularly since the primary reason the Veteran alleges he is unemployable is because of this service-connected disability. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two claims are "inextricably intertwined" when a decision on one claim would have a "significant impact" on the resolution of the second claim). These claims therefore must be considered concurrently to avoid piecemeal adjudication of claims with common parameters. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) and Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. All records concerning the Veteran's service in the North Carolina Army National Guard, including especially any medical examination reports in anticipation of that additional service, should be obtained and associated with the claims file for consideration. He indicated in his December 2004 statement that he was "turned down" by the National Guard at Charlotte and Roanoke Rapids, North Carolina, because of elevated glucose levels within one year of his separation from active duty service in April 1993. Requests for these records should be submitted to the appropriate entity, including the VA Records Management Center (RMC) in St. Louis, Missouri, the North Carolina Army National Guard, the National Personnel Records Center (NPRC), the North Carolina Adjutant General's Office, the Army's Human Resources Command (HRC) in St. Louis, Missouri, and/or other appropriate entity, as determined by the RO. If the RO is unable to obtain the Veteran's National Guard records, all requests for them must be documented in the claims file, including any negative responses received, and the Veteran must be notified of the RO's inability to obtain these records. 38 C.F.R. § 3.159(c)(2) and (e)(1). 2. Make appropriate efforts to obtain the Veteran's SSA records, including decisions issued in January 2009, May 2009, and June 2010, and all supporting medical documents, and associate them with the file. If these records cannot be obtained and the RO concludes that further efforts would be futile, then all efforts to obtain them, as well as any negative responses received, must be documented in the file. The Veteran also must be notified of this fact and provided an opportunity to submit the records himself. 38 C.F.R. § 3.159(c)(2) and (e)(1). 3. Obtain the Veteran's VA vocational rehabilitation records and associate them with the file. 4. Obtain the Veteran's outstanding VA treatment records dating from June 2010 forward, including from the Salisbury VA Medical Center (VAMC), and associate them with the file. 5. Upon receipt of all additional records, schedule the Veteran for a VA compensation examination by a psychologist or psychiatrist. The entire claims file, including a copy of this REMAND, must be made available to the examiner for review prior to the examination. The examiner must indicate in the examination report that the claims file has been reviewed. The examiner should record all pertinent clinical findings and provide specific discussion of the degree of occupational and social impairment caused by the Veteran's service-connected depressive disorder, NOS. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose. If the examiner is unable to distinguish the relative impact of the Veteran's depressive disorder from his history of substance abuse on his occupational and social functioning (as stated by the June 2010 VA examiner), a full explanation must be provided. The examiner should also, in this eventuality, discuss whether the Veteran's substance abuse was caused or aggravated by his depressive disorder. 6. After the above development has been completed, and any other development that may be deemed warranted based on any additional information or evidence received, readjudicate these claims of entitlement to service connection Type II Diabetes Mellitus and for a higher rating for the depressive disorder and a TDIU. If these claims continue to be denied, send the Veteran and his attorney a supplemental statement of the case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of him until further notice. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. He is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). These claims 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). _________________________________________________ KEITH W. ALLEN 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).