Citation Nr: 1331250 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 12-10 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for alcohol abuse, to include as secondary to service connected posttraumatic stress disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from February 1966 to February 1968, including combat experience in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. On the Veteran's April 2012 substantive appeal, he requested a Travel Board Hearing in connection with his claim. In April 2013, the RO notified the Veteran that his hearing was scheduled was scheduled for May 02, 2013. Although the hearing notice was not returned as undeliverable, the Veteran failed to report. There are not other hearing requests of record, so the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704(d). In April 2013, the Veteran submitted an additional statement in support of his claim from his private physician. The RO received this April 2013 statement in May 2013, following their issuance of an October 2012 supplemental statement of the case (SSOC), but did not review this new evidence in a subsequent SSOC prior to certification of the appeal to the Board in July 2013. To the extent that this new evidence is relevant to the claim on appeal, this decision remands the claim for further development, and the RO/AMC will have the opportunity to consider the evidence submitted since the October 2012 SSOC. See 38 C.F.R. § 20.1304. The Veteran reported in July 2011 and March 2012 statements that he last worked in 2008. It appears that the Veteran is raising the issue of entitlement to a total rating based on individual unemployability (TDIU). The issue of TDIU has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for alcohol abuse may be decided. The Veteran has reported in his March 2012 notice of disagreement (NOD) that his drinking is an attempt to adapt to the difficulties of life created by his service connected posttraumatic stress disorder (PTSD). A May 2006 RO rating decision awarded service connected for PTSD, with a 30 percent initial rating. As a general matter, VA law and regulations preclude an award of direct service connection for disability that originated due to alcohol or drug abuse, as this is deemed to constitute willful misconduct on the part of the claimant. 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(b), (d). The United States Court of Appeals for the Federal Circuit, however, has held that there can be compensation for alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran's service connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Secondary service connection is also warranted for any increase in severity of a non-service connected disability that is proximately due to or the result of a service connected disability. 38 C.F.R. § 3.310(b). Additional disability resulting from the aggravation of a non-service connected condition by a service connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, the evidence of record clouds the question of the accuracy of the diagnosis for alcohol abuse at the July 2011 VA examination with conflicting evidence. The July 2011 VA examiner cited the onset of alcohol abuse at the age of 21. However, the Detroit VAMC treatment records reflect counseling as to the dangers of alcohol abuse; without prior axis I diagnosis, or referral to the chemical dependency program for evaluation or treatment. The Veteran's Henry Ford Health Care treatment records similarly report social drinking, without abuse, in November 2008. At the same time, the Detroit VAMC treatment records report that the Veteran drinks 7 to 9 drinks per day, 6 days per week (March 2011); and has been binge drinking regularly since he got back from Vietnam in August 1967 (September 2009). The private treatment records further show that the Veteran's private physician, Dr. V.R.C.M., noted in an April 2013 statement that the Veteran "does not have an alcohol problem," but that the Veteran began "to drink moderately as a coping mechanism" when his PTSD became worse. In July 2011 the Veteran attended a VA examination in connection with his August 2010 claim for increased evaluation of service connected PTSD. The VA examiner made a new axis I diagnosis for alcohol abuse. In November 2011, she offered an addendum opinion on whether this diagnosis could be related to the Veteran's PTSD, but concluded that the Veteran's alcohol abuse is not proximately due to his PTSD. The July 2011 examiner failed to discuss the possibility that the Veteran's service connected PTSD could have aggravated his alcohol abuse. This opinion is required for adjudicating the claim of secondary service connection under Allen and 38 C.F.R. 3.310 as noted above. Allen, 7 Vet. App. 439; See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board therefore finds that another VA examination and medical opinion is necessary in this case to make a determination assessing whether the Veteran has a current diagnosis for alcohol abuse, and if that condition is either caused or aggravated by his service connected PTSD. In her rationale, the July 2011 VA examiner stated that her negative medical nexus opinion was based on the onset for alcoholism at the age of 21 (in 1968), although it was not noted at the March 2006 VA examination done in connection with the Veteran's initial claim for service connection of PTSD. She offered no further explanation for the finding of alcoholism in light of this consistency. The July 2011 VA examiner's opinion is also inadequate without a more thorough rationale to discuss the current diagnosis in light of this inconsistency, and the other conflicting evidence discussed above. Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, the Veteran appears to routinely receive healthcare through the VA Healthcare System at the Detroit VA Medical Center (VAMC). The most recent VA treatment records in the claims file are from August 2011. On remand, the AMC should obtain any outstanding VA treatment records. The record also clearly reflects that the Veteran receives private healthcare with Dr. V.R.C.M. The Detroit VAMC treatment records further document that the Veteran sees a private psychiatrist, but Dr. V.R.C.M. is an internist. The AMC should also give the Veteran a further opportunity to authorize the release of both Dr. V.R.C.M.'s treatment records, and the private treatment records of any non-VA psychiatrist. Finally, the VA has a duty to obtain relevant Social Security Administration (SSA) records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). At the July 2011 VA examination, the Veteran reported that he receives SSA income; and in a September 2009 Detroit VAMC treatment note he specified that he last worked in October 2008, and had discontinued working due medical and mental health issues. Given the Veteran's service connected PTSD and the VA's obligation to obtain relevant SSA records, the Board must remand this case for obtaining the SSA records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Social Security Administration to request Veteran's Social Security records. If any of the requested records are shown to be at another storage facility, a request should be made to the appropriate storage facility. All efforts to obtain the records should be fully documented 2. The RO/AMC should contact the Veteran and ask him to authorize the release of Dr. V.R.C.M.'s treatment records, and the private treatment records of any non-VA psychiatrist. The RO/AMC should then obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 3. The RO/AMC should request updated treatment records from the Detroit VAMC from August 2011 to the present and associate them with the claims file. 4. After any outstanding treatment records have been obtained, schedule the Veteran for VA examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should provide an opinion as to whether: a. The Veteran has a current diagnosis for a substance abuse problem; including a thorough discussion of the Veteran's lay statements and the conflicting medical evidence of record; and b. If the Veteran does have an diagnosis for a substance abuse problem, what was the date of onset for that condition and is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed substance abuse problem is caused by his service connected PTSD; and c. Is it at least as likely as not (50 percent or greater probability) that any diagnosed substance abuse problem is aggravated by his service connected PTSD. 5. Then, review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested report does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 6. Finally, readjudicate the Veteran's claim on appeal. If the benefits sought on appeal are not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ CHERYL L. MASON 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).