Citation Nr: 18160289 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 17-09 895 DATE: December 26, 2018 ORDER Service connection for alcoholism is denied. REMANDED The claim for an initial, compensable rating for tinea cruris is remanded. The claim for an initial, compensable rating for tension headaches is remanded. FINDING OF FACT The Veteran’s alcoholism is a primary disorder that is not a disability for which VA may grant service connection; and the evidence has not shown that his alcoholism is caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for alcoholism have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1960 to December 1963; and from December 1963 to April 1966. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Service Connection for Alcoholism Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). With respect to alcohol and drug abuse, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, prohibited payment of compensation for a disability that is a result of an appellant’s own alcohol or drug abuse, effective for claims filed after October 31, 1990. Moreover, § 8052 also amended 38 U.S.C. § 105(a) and mandated that for claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See also VAOPGPREC 2-97. At his July 2018 hearing, the Veteran asserted that he was court marshalled, punished, and endured a “loss in rank, loss in everything, [and] loss of life”, which led him to excessive drinking. However, as a matter of law, service connection cannot not be granted for alcoholism on this basis, which as he suggests, was incurred in service. 38 U.S.C. §§ 105, 1110 (West 2012); 38 C.F.R. § 3.301 (2017). Rather, an alcohol abuse disorder may only be service connected if such was acquired as secondary to (caused or aggravated by), or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, the evidence of record has not shown, nor has the Veteran asserted, that his alcoholism is symptomatic of, or caused by or aggravated by of his service-connected disabilities. Thus, given that this claim for service connection for alcoholism has not presented a basis for which relief may be granted, with no legal merit, service connection must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law, and not the evidence is dispositive, the claim should be denied due to the absence of legal merit or lack of entitlement under the law). REASONS FOR REMAND The Board regrets further delay but finds that additional development is necessary before a decision may be rendered on the remaining issues on appeal. 1. Initial, Compensable Rating Claim for Tinea Cruris At his hearing, the Veteran suggested that his tinea cruris might have worsened. Specifically, he reported having symptoms of constant itching in the groin area, and additionally, he explained that the rash in his groin area peels and changes colors when applying ointment to treat his tinea cruris. He further explained that the average size of his rash covers anywhere from four to six inches, because it “clumps down from the groin area to the lower part of the thigh.” The last time the Veteran underwent a VA examination for skin diseases was in March 2015. Although the VA examination report reflects that the Veteran reported having symptoms of a constant rash that was characterized by itching and scaly skin thereafter, there is no indication or complaints of discoloration documented. Additionally, at the time of his VA examination, the Veteran reported that he was free of any rashes. Thus, in light of the Veteran’s assertions about his symptoms, a remand is required for a contemporaneous VA examination to determine the current severity of his skin condition. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (finding that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995). Additionally, the Veteran indicates that he is taking medication for his condition and that he is currently seeking treatment with a dermatologist at a VA clinic. However, the most recent treatment records that have been associated with the claims file are from September 2016. Therefore, on remand, all outstanding and/or current treatment records must be obtained and associated with the claims file. 2. Initial, Compensable Rating for Tension Headaches At his hearing, the Veteran asserted that the symptoms of his migraines/tension headaches have worsened. He, additionally, indicated that he is currently seeking treatment for this condition at a VA clinic. The last time the Veteran underwent a VA examination for headaches was in March 2015. Furthermore, treatment records have not been associated with his claims file since September 2016. Thus, as the current severity of his headaches are unknown, a remand is required for the RO to obtain all outstanding and/or current, up-to-date treatment records, and scheduling the Veteran for a contemporaneous VA examination to assess the current severity of his headaches. See Snuffer, 10 Vet. App. at 400; see also Caffrey, 6 Vet. App. at 377; see, too VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. After obtaining the requisite authorization and release, obtain all outstanding private and/or VA treatment records, from September 27, 2016 to the current period, and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his skin condition, using the appropriate worksheet. 3. Also, schedule the Veteran for a VA examination to determine the current severity of his tension headaches, using the appropriate worksheet. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Vanessa-Nola Pratt, Associate Counsel