Citation Nr: 1751819 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-31 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent prior to April 9, 2014, and in excess of 70 percent thereafter for posttraumatic stress disorder (PSTD) with major depressive disorder (MDD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 9, 2014. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Htun, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1980 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2012 and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In this regard, a December 2011 rating decision awarded service connection for PTSD with MDD secondary to military sexual trauma and assigned a 50 percent rating, effective August 20, 2009. Although the Veteran did not submit a notice of disagreement to this decision, new and material evidence, which included a February 2012 VA examination and Social Security Administration (SSA) records, was received within one year of the decision. Thereafter, his claim for a rating in excess of 50 percent for his PTSD with MDD was denied in the October 2012 rating decision. However, as the February 2012 VA examination and SSA records are considered as having been filed in connection with the claim that was pending at the beginning of the appeal period, the December 2011 rating decision did not become final. See 38 C.F.R. § 3.156(b) (2017). In turn, this appeal has been ongoing since the date of the original award of service connection, August 20, 2009. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Therefore, the claim has been characterized as shown on the title page of this decision. The December 2014 rating decision granted a 70 percent rating for PTSD and awarded a TDIU, both effective April 9, 2014. Where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition both before and after the effective date of the higher rating. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issues therefore remain in appellate status and have been characterized as set forth on the front page of this decision. In November 2015, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In May 2016, the Board denied the issues listed on the title page. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2017 Joint Motion for Remand (JMR), which the Court granted later that month, the parties moved to vacate and remand the Board's decision. As such, the case now returns to the Board for further consideration in light of the JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In the April 2017 JMR, the parties determined that the Board failed to address whether the issue of secondary service connection for the Veteran's alcohol dependence was reasonably raised. As 38 C.F.R. § 3.310(a) provides that a secondary disability that is proximately due to or the result of a service-connected disability is deemed to be service-connected, the parties agreed to remand the case to afford the Board the opportunity to consider whether a claim for service connection for the Veteran's alcohol dependence as secondary to his service-connected PTSD with MDD was reasonably raised, and if so, to obtain a VA medical opinion as to whether such dependency was primary or secondary to his PTSD. The Board notes that primary diagnosed disabilities of drug or alcohol abuse are not disabilities for which service connection can be granted. 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301. However, service connection may be awarded for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In order to qualify for service connection in this regard, the Veteran must establish that his alcohol or drug abuse disability is secondary to or is caused by a service-connected disorder. Id. In the instance case, the Board finds that the issue of entitlement to service connection for alcohol dependence as secondary to service-connected PTSD with MDD has been reasonably raised. In this regard, the Board notes that, during the pendency of the appeal, the Veteran claimed to have started using alcohol to cope with his PTSD, and a March 2011 VA examiner opined that his alcohol dependence was related to his PTSD. As the issue of alcohol dependence has been reasonably raised, an addendum VA medical opinion should be obtained on remand in accordance with the terms of the April 2017 JMR. Further, as the Veteran's claim of entitlement to a TDIU prior to April 9, 2014, is inextricably intertwined with his claim for higher initial ratings for PTSD, the adjudication of such issue must be deferred pending completion of the additional evidentiary development outlined above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, the case is REMANDED for the following actions: 1. Forward the record to an appropriate VA examiner so as to determine whether the Veteran's alcohol dependence is secondary to his PTSD with MDD. The record, to include a copy of this Remand, must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should review the record and provide an opinion as to whether it is at least as likely as not that the Veteran's alcohol dependence is caused or aggravated by his service-connected PTSD with MDD. In offering such opinion, the examiner should consider the Veteran's report that he started using alcohol to cope with his PTSD, and the March 2011 VA examiner's opinion that his alcohol dependence was related to his PTSD. For any aggravation found, the examiner should state, to the best of his/her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. The rationale for any opinion offered should be provided. 2. After completing the above action, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, and adjudicating the reasonably raised claim of entitlement to service connection for alcohol dependence as secondary to service-connected PTSD with MDD, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).