Citation Nr: 1332383 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 05-31 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a hypercoagulation disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and opiate dependence, to include as secondary to his service-connected disabilities. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from April 1991 to June 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2004, April 2010 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In June 2005 and August 2010, the appellant presented testimony at a personal hearing conducted at the Detroit RO before a Decision Review Officer (DRO). Transcripts of these hearings have been associated with the appellant's claims folder. The claim for entitlement to service connection for a hypercoagulation disorder was previously before the Board in January 2008 when it was remanded for further development. The claim was then denied by the Board in an October 2008 decision. The appellant appealed this denial to the Court of Appeals for Veterans Claims (Court). In July 2010, the Court issued a memorandum decision vacating and remanding the portion of the Board's October 2008 decision that denied service connection for a hypercoagulation disorder. The appeal was returned to the Board. In a December 2011, the Board denied the above claims. The appellant appealed the denial to the Court. In December 2012, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order that same month, granting the Joint Motion, and returned the case to the Board. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Pursuant to the December 2012 remand, a remand is necessary to complete VA's duty to assist. The appellant stated that he applied for workman's compensation. VA did not request the records, as requested in a January 2008 remand. As VA has a duty to obtain relevant records from a Federal department or agency, the claim must be remanded to request the appellant's workman's compensation records and any decisions and medical records upon which those decisions were based. In regard to the appellant's claim for service connection for an acquired psychiatric disorder, the appellant has been diagnosed with opioid dependence. See July 2010 VA examination report. A September 2008 VA treatment record reflects that the appellant had chronic pain in the ankles, knees, back, headaches and muscle aches. The record noted that he had been on opiates for this for years, by history. As discussed in the Joint Motion, the issue of entitlement to service connection for an opioid dependency disorder secondary to his service-connected ankle and knee disabilities has thus been raised by the record. Ordinarily, evidence of primary alcohol and drug abuse is considered to be "willful misconduct" and therefore, not subject to service connection or compensation on a direct basis. See generally 38 C.F.R. § 3.301 (2013). In Allen v. Principi, 237 F.3d. 1368, 1376-68 (Fed. Cir. 2001), the Federal Circuit outlined the narrow circumstances in which 38 U.S.C.A. § 1110 authorized disability compensation for alcohol-abuse related disability. The Federal Circuit held that 38 U.S.C.A. § 1110 allowed service connection in one circumstance - when alcohol abuse arose "secondarily from or as evidence of the increased severity of a non-willful misconduct, service-connected disorder." Id. at 1378. As the record indicates the appellant's opioid dependence may be related to his service-connected disabilities, the Board finds that a VA examination is warranted to address the etiology of the appellant's opioid dependency. Additionally, a March 2013 private psychotherapy note indicates that the appellant has been diagnosed with Axis I diagnoses of major depressive disorder, PTSD, chronic sleep difficulties associated with mental illness, alcohol abuse, and opiate dependence. As the appellant has been diagnosed with the psychiatric disorders during the period on appeal, the new VA examination should address whether any of the disorders are related to service or a service-connected disability. In regard to the issue of entitlement to a TDIU. The claim is inextricably intertwined with the issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are 'inextricably intertwined' when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, the issue of entitlement to a TDIU must also be remanded. As discussed in the Joint Motion, the July 2010 VA examination addressing unemployability was ambiguous in addressing whether the appellant was able to work full or part time. Consequently, the Board finds that a new VA examination addressing whether the appellant's employability is necessary. Finally, the VA treatment records in the file only date to March 2013. As the records are relevant to the claim for entitlement to a TDIU, the Board requests the appellant's complete VA treatment records from March 2013 to present. Accordingly, the case is REMANDED for the following action: 1. Request the appellant's workman's compensation records and any decisions and medical records upon which those decisions were based. If the records cannot be obtained, the claims file must indicate this fact. 2. Obtain all of the appellant's VA treatment records from March 2013 to present. If no records are available, the claims folder must indicate this fact. 3. After any records obtained have been associated with the claims file, the RO should schedule the appellant for a VA examination to determine the following: (a) Identify all psychiatric disorders, to include opioid dependency, major depressive disorder, and PTSD. The examiner should address the March 2013 diagnoses of major depressive disorder, PTSD, and chronic sleep difficulties. (b) Provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the appellant's opioid dependency is caused or aggravated by his service-connected disabilities, to include his patellofemoral pain syndrome and bilateral ankle disabilities. (c) Provide opinions as to: (i) whether it is at least as likely as not (at least a 50 percent probability) that any psychiatric disorders diagnosed are related to service; and/or (ii) whether it is at least as likely as not that any psychiatric disorders diagnosed are caused or aggravated by his service-connected disabilities. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 4. After completion of the foregoing, schedule the appellant for a VA medical examination to determine the impact of the appellant's service-connected disabilities on his employability (left and right patellofemoral pain syndrome, left and right ankle injuries with degenerative changes, bilateral pes cavus with mild degenerative disease, and urticaria). All indicated studies should be performed, and all findings should be reported in detail. The examiners must opine whether it is at least as likely as not that the appellant's service-connected disabilities render the appellant unable to secure or follow a substantially gainful occupation in light of his education and occupational history. The VA examiner must address the extent of functional and industrial impairment due to the appellant's service-connected disabilities. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 5. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claims, to include denial. See 38 C.F.R. § 3.655 (2013). 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). _________________________________________________ MILO H. HAWLEY 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) (2013).