Citation Nr: 1338355 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 08-03 505A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for nicotine dependence as secondary to service-connected anxiety. 2. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active military service from December 1968 to June 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In that decision, the RO denied the Veteran's claim for service connection for nicotine dependence and his claim for an increased rating for his service-connected anxiety disorder, as well as his claim for entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). The Veteran perfected an appeal to the Board In April 2010 and April 2012, the Board remanded the appeal for additional development. Notably, in August 2013, the Board awarded a 50 percent rating for service connected anxiety, and this issue is no longer on appeal. The issues of service connection for nicotine dependence and TDIU were remanded for additional development. In August 2013, the Board found that the issue of service connection for sleep apnea, to include as secondary to service connected anxiety was raised in an October 2011 statement and referred the claim to the AOJ for appropriate action. To date, no action has been taken on this claim, and it is again 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 September 2013 VA medical opinion (with October 2013 addendum) is inadequate for adjudication purposes as explained below. Additional medical opinions are needed. For the claimed nicotine dependence disorder, the examiner states that it is due to the Veteran's own willful misconduct. She does not provide an explanation for her finding in light of the Veteran's particular service and post service psychiatric history. Rather, she explains the general addiction process and then comments that "little is known" about the co-occurrence of nicotine disorders and psychiatric disorders due to an absence of clinical studies. Her comments would suggest any etiological relationship is currently unknown. Another opinion is necessary to determine whether the Veteran's nicotine dependence was caused by or made worse by his service connected anxiety disorder in light of his specific history and known clinical studies. If an opinion cannot be given without resort to speculation, the examiner should clearly state so and report on whether a non-speculative opinion is outside the realm of current medical knowledge. For the TDIU claim, clarification is needed on whether the Veteran is able to maintain gainful employment. The examiner expresses a negative opinion, but later qualifies it as pertaining to part time or sheltered employment (i.e. "repetitive" and "stressless"). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold, is not considered employment for TDIU purposes. The opinion must be based on occupational interference with gainful employment due to service connected disabilities. Another TDIU opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Request VA treatment records since May 2010 that pertain to the Veteran's service connected anxiety, neurodermatitis, and hypertrophic tonsils. Efforts to obtain VA treatment records must continue until it is certain further efforts would be futile. If any requested records cannot be obtained, notify the Veteran and his representative. 2. After associating any newly generated VA treatment records with the claims folder, schedule the Veteran for a VA psychiatric examination with a new mental health clinician (i.e. different clinician than the one conducting the September 2013 VA examination). The claims folder, copy of the remand, and access to any pertinent records in Virtual VA/ VBMS must be provided and reviewed by the examiner. A clinical interview and any indicated studies should be performed. After review of the claims folder and clinical interview, the examiner must provide the following opinions: (i) Is it more likely than not (50 percent probability or greater) that the currently diagnosed nicotine dependence disorder caused by or has been chronically worsened by the Veteran's service-connected disabilities of anxiety disorder, neurodermatitis, and hypertrophic tonsils? If an aggravation is found, the examiner should try to ascertain a baseline nicotine dependence disability existing prior to aggravation. (ii) Is it more likely than not (50 percent probability or greater) that the Veteran's service connected disabilities (anxiety, 50 percent disabling; neurodermatitis, 30 percent disabling; and hypertrophic tonsils, 10 percent disabling) alone and without consideration to non-service connected disabilities render him incapable of securing and following substantially gainful employment? The examiner must consider gainful employment as employment that provides annual income of at least $11,945 (i.e. relevant poverty threshold). All opinions must be expressed in terms of scientific certainty and supported by a clinical rationale with specific references to the Veteran's history and citation to clinical studies where appropriate. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ should ensure that the examination reports comply with the instructions in this remand. Thereafter, the AOJ should undertake any additional evidentiary development deemed appropriate and re-adjudicate the claims. If a benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case and provide opportunity for response before the case is returned to the Board. 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). _________________________________________________ J. A. MARKEY 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).