Citation Nr: 18146942 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-06 780 DATE: November 5, 2018 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for an alcohol use disability is reopened. REMANDED Entitlement to service connection for an alcohol use disability, to include as secondary to service-connected post-traumatic stress disorder, is remanded for additional development. Entitlement to an increased rating in excess of 0 percent for bilateral hearing loss is remanded for additional development. ISSUE SUBJECT TO STAY OF ADJUDICATION The Board observes that the Veteran has perfected an appeal of the denial of service connection for a heart disability, to include due to herbicide exposure. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As the issue of service connection for a heart disability may be affected by the resolution of Procopio, the Board will “stay” or postpone action on this matter. FINDINGS OF FACT 1. A September 2009 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied the Veteran’s claim of service connection for an alcohol use disability; the Veteran was notified of the decision and apprised of his right to appeal, but did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 2. Evidence received since the September 2009 rating decision is neither cumulative nor repetitive of facts that were previously considered, and raises the possibility of substantiating the claim for service connection for an alcohol use disability. CONCLUSIONS OF LAW 1. The September 2009 rating decision denying service connection for an alcohol use disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2017). 2. The criteria for reopening the claim of service connection for an alcohol use disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the U.S. Navy from February 1971 to December 1972. During this time, he was awarded the Vietnam Service Medal, the Vietnam Campaign Medal, the National Defense Service Medal, and Combat Action Ribbon. These matters come to the Board of Veteran’s Appeals (Board) on appeal from a December 2013 rating decision from the Department of Veterans Affairs (VA) regional office (RO) in St. Louis, Missouri. Claim to Reopen The Veteran’s claim for entitlement to service connection for an alcohol use disability, to include as secondary to a service -connected disability, was initially denied by the RO in a September 2009 decision, as the evidence did not show that it manifested in service or a compensable degree within a year of separation from service, nor that it was otherwise related to an already-service-connected disability. The record does not show that the Veteran appealed this decision. The Veteran filed to reopen his claim for entitlement to service connection in June 2013. In the process of developing this claim, the RO obtained new medical evidence consisting of the Veteran’s VA treatment records generated after the September 2009 rating decision, including a treatment record reflecting that the Veteran had attempted to self-medicate his PTSD symptoms with alcohol. See July 2013 Cape Girardeau CBOC Social Work General Note (reporting that the Veteran was having nightmares about Vietnam and combat, that he woke up one night having a severe panic attack, and unsuccessfully tried to calm himself down by drinking). Prior to making a determination with respect to the Veteran’s claim of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor 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 Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a review of the evidentiary record, the Board finds the Veteran’s treatment records following the issuance of the September 2009 rating decision constitutes “new” evidence, as it was not available at the time of that decision. Moreover, the Board finds that this new evidence is material, as it suggests that there may be a connection between the Veteran’s alcohol use disability and his currently-service connected PTSD. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for an alcohol use disability, to include as secondary to an already service-connected disability.   REASONS FOR REMAND While the Board sincerely regrets the delay, a remand is required for additional development before the Board may make determinations on the merits of the claims currently on appeal. 1. Entitlement to service connection for an alcohol use disability is remanded. As discussed above, the Board has reopened the Veteran’s claim for an alcohol use disability on the basis of new and material evidence; having done so, the Board further finds that a new VA examination is warranted for this claim. In April 2014, the Veteran underwent a VA PTSD examination that he had previously missed due to a conflicting medical appointment. The VA examiner noted that the Veteran had diagnoses of post-traumatic stress disorder (PTSD), major depressive disorder, and alcohol use disorder. See April 2014 PTSD Disabilities Benefits Questionnaire. The examiner opined that all three disorders were as least as likely as not caused by or a result of the Veteran’s military service. Id. The examiner further indicated that it was not possible to differentiate what symptoms the Veteran had that were attributable to each diagnosis. Id. He explained that the symptoms of all three disorders “are overlapping and intermingled and this makes it difficult to differentiate the symptoms to each diagnosis.” Id. He also indicated that he was unable to differentiate which portion of the Veteran’s occupational and social impairment was caused by each diagnosed disorder, citing the same reasons. Id. The examiner did not provide an opinion as to whether or not the Veteran’s alcohol use disorder was as least as likely as not related to his already service-connected PTSD. Because the Veteran has multiple diagnosed disorders, all of which have been determined to be related to the Veteran’s service, in light of the VA examiner’s inability to differentiate the symptomatology attributable to the various psychiatric diagnoses, and given the previously noted existence of evidence indicating a possible connection between the Veteran’s already service-connected PTSD and his alcohol use, the Board finds that a new VA psychiatric examination is warranted to determine if the Veteran’s alcohol use disorder is secondary to an already service-connected disability. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). 2. Entitlement to an increased rating in excess of 0 percent for bilateral hearing loss is remanded. The Board also finds that a new VA examination is warranted to assess the current nature and severity of the Veteran’s service-connected hearing loss. In this regard, the Veteran was last provided a VA examination addressing this disability in March 2016. See March 2016 VA Hearing Loss Disability Benefits Questionnaire (DBQ). However, a review of the Veteran’s treatment records indicates that the Veteran was subsequently provided with hearing aids as a result of “mild to moderate right and mild to severe left” sensorineural hearing loss. See April 2016 Sikeston CBOC Addendum Hering Aid Evaluation. Further, in November 2017, the RO scheduled the Veteran for new hearing loss examination, but then cancelled it due to a shortage of examination providers and with the intention that the new hearing loss examination be contracted. See November 2017 VA Request for Physical Examination (VA Form 21-2507a). Accordingly, given the evidence that the Veteran’s current disability picture has possibly changed, and considering that his last VA examination concerning this condition occurred over two years ago, the Board finds that the most recent VA examination does not adequately reveal the present state of the Veteran’s service-connected hearing loss. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Board finds, therefore, that a contemporaneous examination is required to ascertain the current severity of the Veteran’s service-connected hearing loss. 38 C.F.R. § 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. Obtain any additional outstanding VA treatment records for the Veteran and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 2. After any available records are associated with the claims file, the AOJ must schedule the Veteran for a VA mental health examination to determine the nature and etiology of the Veteran’s alcohol use disability. The examiner should respond to the following inquiries: a) Is it at least as likely as not (i.e. a 50 percent chance or greater) that the Veteran’s current alcohol use disorder is due to, or secondary to, his service-connected PTSD. b) Is it at least as likely as not (i.e. a 50 percent chance or greater) that the Veteran’s current alcohol use disorder is aggravated by his service-connected PTSD. The examinations should include any diagnostic testing or evaluation deemed necessary. Access to the electronic claims file, including a copy of this remand, must be made available for the examiner to review. The examination reports must include a notation that this record review took place. The Veteran must be interviewed. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. The examination should include any diagnostic testing or evaluation deemed necessary for the specific claimed disability. The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the specific examiner. 3. After any available records are associated with the claims file, the AOJ must schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected hearing loss disability. The examination should include any diagnostic testing or evaluation deemed necessary for the specific claimed disability, including the Maryland CNC test and a puretone audiometry test. Access to the electronic claims file, including a copy of this remand, must be made available for the examiner to review. The examination reports must include a notation that this record review took place. The Veteran must be interviewed. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the issues on appeal of service connection alcohol use disorder and increased rating for bilateral hearing loss should be readjudicated. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement   of the case and allowed an appropriate period of time for response. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel