Citation Nr: 18157302 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 13-18 074 DATE: December 12, 2018 ORDER Entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities is denied. REMANDED Entitlement to a seizure disorder as secondary to service-connected acquired psychiatric disability is remanded. Entitlement to a back disability as secondary to a seizure disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT There is no legal entitlement to a 10 percent disability evaluation for multiple noncompensable service-connected disabilities, as the Veteran is in receipt of a compensable rating. CONCLUSION OF LAW Entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities pursuant to 38 C.F.R. § 3.324 is denied. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to May 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision. These matters were previously before the Board in April 2015, when they were remanded for further development. Entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities is denied. The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of non-compensable service-connected disabilities. As such, once a compensable evaluation for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). In this regard, a June 2018 rating decision awarded entitlement to service connection for an acquired psychiatric disorder and assigned a 30 percent disability evaluation effective December 14, 2010, date of the Veteran’s claim for entitlement under §3.324. Therefore, the Veteran’s claim for compensation under 38 C.F.R. § 3.324 is rendered moot. Accordingly, the claim must be denied as a matter of law. REASONS FOR REMAND Entitlement to service connection for a seizure disorder, to include as secondary to service-connected acquired psychiatric disability, and entitlement to service connection for a back disability, to include as secondary to a seizure disorder, are remanded. The Veteran’s claim for benefits in 2004, when considering all evidence submitted, indicated that he believed service caused posttraumatic stress disorder (PTSD), which caused alcohol abuse, which caused a seizure disorder, which caused a car accident, which caused his current back disability. The Board notes that the Veteran has been service connected for an acquired psychiatric disorder to include agoraphobia and anxiety disorder with PTSD during the pendency of the appeal. The Board notes that service connection cannot be granted for alcohol abuse on a direct-incurrence basis, but may be granted for an alcohol or drug abuse disability as secondary to, or as a symptom of, a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). 38 U.S.C. § 1110 permits the receipt of compensation for an alcohol or drug abuse disability as secondary to, or as a symptom of, a service-connected disability. Id. Further, the relationship between a claimant’s condition and service may be established through a causal chain of diseases or disabilities. Thus, if the condition for which VA benefits is sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, VA generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service. If VA determines that the causal disease or disability is, in fact, connected to service, then the claim for benefits for the condition ‘reasonably encompasses’ a claim for that causal disease or disability. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Thus, in order to properly address the Veteran’s claims for service connection for a back disability and seizure disorder, it is appropriate to address a link between his service-connected psychiatric disability and alcohol abuse. Such has not been adjudicated by the RO, and as such, not developed for appellate consideration at this time. However, as such is inextricably intertwined with the service connection issues on appeal, it must be remanded to the RO for appropriate development and adjudication prior to appellate review of the service connection issues on appeal. The Board notes that the record contains a VA medical opinion from June 2018 that addresses the Veteran’s alcohol abuse. The examiner stated that the etiology of alcohol use is often multi-factorial and anxiety is one reason that may contribute to alcohol use, but often does not fully account for an alcohol use problem. The examiner further noted that it is difficult to say with certainty without resorting to speculation as to why someone began and continued to over-use any substance including alcohol. The examiner then stated that in this particular case, given that the treatment records from the time of his alcohol related admissions did not make any mention of an anxiety related disorder, it would “seem to be less likely than not” that his alcohol use is directly related to an anxiety-related disorder. The Board finds this opinion inadequate for decision making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The examiner noted the Veteran’s contentions as to onset, and that the Veteran contends that he began drinking as due to his anxiety disorder. The examiner placed more weight on a report from the 1980’s that indicated the Veteran’s drinking began during service, and the absence of a diagnosis of an anxiety disorder at that time than the Veteran’s statements that he was drinking alcohol to cope with his anxiety disorder. The Board notes that the examiner does not address the findings of anxiety symptoms on examination for alcohol abuse in 1981, and does not address the potential for the Veteran’s anxiety disorder to have been masked by his alcohol abuse. Further, in order to appropriately afford the Veteran the proper benefit of the doubt, an examiner must provide an opinion as to whether a particular condition is “at least as likely as not” proximately due to, or aggravated by, the service-connected psychiatric disability. The examiner’s opinion here is prefaced with the qualifier “seems” prior to offering its negative nexus opinion. The examiner further indicates that her opinion is speculative. When an examiner is asked to render an opinion, and determines that she cannot do so without resorting to mere speculation, the Board may not rely on such an opinion unless the record in its entirety, including the examination and the opinion itself, shows that “the examiner [did] not invoke the phrase ‘without resort to mere speculation’ as a substitute for the full consideration of all pertinent and available medical facts.” See Jones v. Shinseki, 23 Vet. App. 382 (2010). Further, the Board notes that an opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board again notes the examiner’s failure to address symptoms of anxiety on examination in 1981. Further, the record does not contain an opinion as to whether the Veteran’s alcohol abuse was aggravated by the Veteran’s acquired psychiatric disability. As such, an addendum opinion is necessary on remand to address the Veteran’s alcohol abuse. The Board notes that June 2018 VA nexus opinions for seizures and a back disability, while negative for a nexus to a service-connected condition, explicitly indicate that the Veteran’s current back disability was caused by a car accident that was caused by a seizure disorder, that was caused by alcohol abuse. Entitlement to a TDIU is remanded. The Board notes that the Veteran does not currently meet the schedular requirements for a TDIU, however, the Veteran’s eligibility may be impacted by his claims for service connection for disabilities currently on appeal. As such, the Board finds that the issue is intertwined with the other issues remaining on appeal, and adjudication is deferred. The matters are REMANDED for the following action: 1. Forward the record and a copy of this Remand to the examiner who provided the June 2018 VA alcohol opinion, or, if that examiner is unavailable, to another suitably qualified examiner for completion of an addendum opinion. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s alcohol abuse is proximately due to or aggravated by his service-connected acquired psychiatric disability. Aggravation is defined as the permanent worsening beyond the natural progression of the disease. A complete rationale must be offered for any conclusion reached. The examiner should address the Veteran’s symptoms of anxiety during his 1981 treatment for alcohol abuse, and must address the Veteran’s contentions that he was self-medicating his anxiety with alcohol, and whether it would be expected for a diagnosis of anxiety disorder to accompany his 1980 treatment given his contentions. 2. After the above development has been completed, adjudicate the issue of entitlement to service connection for alcohol abuse as secondary to service-connected acquired psychiatric disability. Notice of the determination and the Veteran’s appellate rights should be issued to the Veteran and his representative. Only if an appeal is completed as to the determination should the issue be returned to the Board for appellate consideration. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought remains denied, furnish the Veteran and   his representative a Supplemental Statement of the Case and an appropriate amount of time for response. Thereafter, return the case to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel