Citation Nr: 18156974 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 12-06 613 DATE: December 11, 2018 ORDER 1. Entitlement to service connection for alcohol dependence as secondary to service-connected posttraumatic stress disorder (PTSD) is granted. REMANDED 1. Entitlement to service connection for a liver disorder as secondary to service-connected alcohol dependence is remanded. 2. Entitlement to an initial rating greater than 50 percent prior to July 29, 2016, and greater than 70 percent thereafter, for PTSD is remanded. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The record evidence is in relative equipoise as to whether the Veteran’s service-connected PTSD caused or aggravated (permanently worsened) his alcohol dependence. CONCLUSION OF LAW The criteria for entitlement to service connection for alcohol dependence as secondary to service-connected PTSD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1966 to October 1970, including in combat in the Republic of Vietnam. This case has a long procedural history. In November 2014, the Board denied, in pertinent part, the Veteran’s claim for an initial rating greater than 50 percent for PTSD and remanded, in pertinent part, a claim of service connection for alcohol dependence as secondary to service-connected PTSD (which was characterized as alcohol abuse). The Veteran, through his attorney, appealed that part of the Board’s November 2014 decision which denied an initial rating greater than 50 percent for PTSD to the United States Court of Appeals for Veterans Claims (Court). In November 2015, the Court vacated and remanded only that part of the Board’s November 2014 decision which denied an initial rating greater than 50 percent for PTSD. Specifically, the Court directed that, on remand, the Board consider whether the Veteran was entitled to service connection for his separately diagnosed acquired psychiatric disability of depressive disorder. In an August 2016 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a higher initial 70 percent rating effective July 29, 2016, for the Veteran’s service-connected PTSD. Because the initial ratings assigned to the Veteran’s service-connected PTSD are not the maximum ratings available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In June 2017, the Board denied, in pertinent part, the Veteran’s claims of service connection for alcohol dependence as secondary to service-connected PTSD (which was characterized as alcohol dependence disorder, claimed as secondary to service-connected PTSD) and for a liver disorder as secondary to alcohol dependence (which was characterized as a liver disorder, claimed as secondary to an alcohol dependence disorder). The Board also remanded, in pertinent part, the Veteran’s higher initial rating claim for PTSD. The Veteran, through his attorney, and VA’s Office of General Counsel appealed only that part of the Board’s June 2017 decision denying service connection claims for alcohol dependence and for a liver disorder by filing a Joint Motion for Partial Remand (Joint Motion) with the Court in May 2018. The Court granted the Joint Motion later in May 2018, vacating and remanding only that part of the Board’s June 2017 decision denying service connection claims for alcohol dependence and for a liver disorder. In December 2017, the Board again remanded the Veteran’s higher initial rating claim for PTSD. The Board also took jurisdiction over a TDIU claim as part and parcel of the higher initial rating claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to service connection for alcohol dependence as secondary to service-connected PTSD The Board finds that the evidence reasonably supports granting the Veteran’s claim of service connection for alcohol dependence as secondary to service-connected PTSD. The Veteran essentially contends that, as the symptomatology attributable to his service-connected PTSD worsened, he began drinking heavily and subsequently was diagnosed as having alcohol dependence secondary to his service-connected PTSD. The record evidence is in relative equipoise as to whether there is an etiological link between the Veteran’s current alcohol dependence and his service-connected PTSD. See generally 38 C.F.R. § 3.310 (2017). The Board notes initially that both parties to the May 2018 Joint Motion contended that the Board erred in its June 2017 decision by basing the denial of service connection for alcohol dependence as secondary to service-connected PTSD on medical opinions provided in January 2016 and in September 2016, both of which were inadequate for VA adjudication purposes. (The Board notes parenthetically that the first opinion was completed on January 29, 2016, but was not associated with the Veteran’s electronic claims file until February 4, 2016, and the second opinion was completed on September 30, 2016, but was not associated with the claims file until October 11, 2016. For purposes of consistency, the Board will refer to these opinions as the January 2016 and September 2016 opinions, respectively.) Because the Court granted the Joint Motion later in May 2018, and because the Board is bound by the Court’s Order granting the Joint Motion, neither the January 2016 opinion nor the September 2016 opinion can be relied upon in adjudicating the Veteran’s secondary service connection claim for alcohol dependence. The remaining medical evidence of record both supports and goes against the Veteran’s claim of service connection for alcohol dependence as due to service-connected PTSD. For example, in November 2012, a VA clinician opined that the Veteran’s service-connected PTSD “did not cause or permanently aggravate” his alcohol dependence. The rationale for this opinion was an extensive review of medical literature. In contrast, following VA PTSD Disability Benefits Questionnaire (DBQ) in July 2016, the VA examiner opined, “There is a clinical association between PTSD and alcohol use disorder.” She also diagnosed the Veteran as having alcohol use disorder as secondary to his service-connected PTSD. The rationale for this opinion was that the “Veteran’s alcohol use increased in response to his PTSD symptoms and has been used in the past as self-medication.” The Veteran has contended throughout the pendency of this appeal that he incurred alcohol dependence as a result of his service-connected PTSD. It is undisputed that service connection is in effect for PTSD. It also is undisputed that the Veteran has been diagnosed as having and treated for alcohol dependence (or alcohol dependence disorder) in recent years. The medical evidence is in relative equipoise as to whether the Veteran’s service-connected PTSD caused or aggravated (permanently worsened) his current alcohol dependence. On the one hand, the November 2012 VA clinician opined that the Veteran’s service-connected PTSD has not caused or aggravated his alcohol dependence. On the other hand, the July 2016 VA examiner diagnosed the Veteran as having alcohol dependence as secondary to his service-connected PTSD and found “a clinical association” between these disorders. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the record evidence sufficiently supports finding that the Veteran incurred alcohol dependence as a result of his service-connected PTSD. See 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. In summary, the Board finds that service connection for alcohol dependence as due to service-connected PTSD is warranted. REASONS FOR REMAND Entitlement to service connection for a liver disorder as secondary to service-connected alcohol dependence is remanded. The Veteran also contends that he incurred a liver disorder as a result of his alcohol dependence which he attributed to his service-connected PTSD. As noted above, the Board has granted service connection for alcohol dependence as secondary to service-connected PTSD in this decision. A review of the record evidence suggests that the Veteran has complained of and been treated for a liver disorder since his service separation. To date, however, he has not been scheduled for appropriate examination to determine the nature and etiology of his liver disorder. Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his liver disorder, including as due to his service-connected alcohol dependence. Entitlement to an initial rating greater than 50 percent prior to July 29, 2016, and greater than 70 percent thereafter, for PTSD is remanded. The Board next notes that the Veteran’s higher initial rating claim for PTSD has been remanded previously, most recently in December 2017. Unfortunately, to date, the AOJ still has not complied with the terms of the Board’s prior remands regarding this claim. The Board notes in this regard that this claim originally was remanded pursuant to the Court’s November 2015 memorandum decision which directed the Board, in pertinent part, to determine whether the Veteran was entitled to service connection for an acquired psychiatric disability other than PTSD, to include depressive disorder. In an attempt to comply with this remand directive, the AOJ has sent this claim repeatedly to a VA clinician, Dr. J. H. M., who has not yet provided the requested etiological opinion in a manner likely to survive judicial review. The Board previously found Dr. J. H. M.’s May 2015 and July 2017 opinions to be inadequate for VA adjudication purposes in its December 2015 and December 2017 remands, respectively, and will not repeat its prior analysis of the deficiencies in these opinions. Unfortunately, following the December 2017 remand, this claim was returned to Dr. J. H. M. for another opinion which he provided in January 2018 and which is inadequate for VA adjudication purposes. In his January 2018 opinion, Dr. J. H. M. stated both that the Veteran had been diagnosed as having depressive disorder and “this Veteran does not exhibit depressive disorder.” This clinician concluded that there was no concurrent psychiatric diagnosis other than the Veteran’s PTSD and “the entire point of this claim is moot.” He did not explain the apparent contradiction in his opinion as to whether or not the Veteran had been diagnosed as having depressive disorder. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the December 2017 remand instructions. And although the Board is reluctant to contribute to “the hamster-wheel reputation of Veterans law” by remanding this claim again, another remand is required. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands “perpetuate the hamster-wheel reputation of Veterans law”). Given the apparent confusion of Dr. J. H. M. concerning the prior remand directives, and given the fact that the Board is prohibited from making its own independent medical determinations, on remand, the claims file should be sent to a different VA clinician other than Dr. J. H. M. for his or her opinion of whether there is a valid diagnosis of an acquired psychiatric disability other than PTSD, to include depressive disorder, and, if so, whether the symptomatology attributable to this disability can be separated from the symptomatology attributable to the Veteran’s service-connected PTSD. See also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding Board prohibited from exercising its own independent judgment to resolve medical questions). Entitlement to a TDIU is remanded. The Veteran also essentially contends that his service-connected disabilities, alone or in combination, preclude him from securing or maintaining a substantially gainful occupation, entitling him to a TDIU. The Board notes in this regard that adjudication of the other claims being remanded in this appeal likely will impact adjudication of the Veteran’s TDIU claim. Thus, the Board finds that all of these claims are inextricably intertwined and adjudication of the TDIU claim must be deferred. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate examination to determine the nature and etiology of his liver disorder. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a liver disorder, if diagnosed, is related to active service or any incident of service. The examiner also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s service-connected alcohol dependence caused or aggravated (permanently worsened) his liver disorder, if diagnosed. A separate opinion and rationale should be provided for each liver disorder currently experienced by the Veteran, if possible. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why. 2. Forward the Veteran’s claims file to an appropriate clinician (other than Dr. J. H. M., the clinician who provided prior opinions dated in May 2015, July 2017, and in January 2018) to provide an opinion concerning the nature and etiology of any acquired psychiatric disability other than PTSD, to include depressive disorder, if diagnosed, currently experienced by the Veteran. The claims file should not be returned to Dr. J. H. M. Following a review of the claims file, this clinician is asked to state whether the Veteran has a valid diagnosis of an acquired psychiatric disability other than PTSD, to include depressive disorder. If there is a valid diagnosis of an acquired psychiatric disability other than PTSD, to include depressive disorder, then this clinician is asked to state whether the symptomatology attributable to the Veteran’s acquired psychiatric disability other than PTSD, to include depressive disorder, can be separated from the symptomatology attributable to his service-connected PTSD. This clinician finally is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disability other than PTSD, to include depressive disorder, if diagnosed, is related to active service or any incident of service. A separate opinion and rationale should be provided for each acquired psychiatric disability other than PTSD, to include depressive disorder, currently experienced by the Veteran, if possible. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why. The clinician is advised not to review or rely upon opinions provided in May 2015, July 2017, or in January 2018 by Dr. J. H. M. in preparing his or her own opinion. (Continued on the next page)   3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs