Citation Nr: 20047366 Decision Date: 07/15/20 Archive Date: 07/15/20 DOCKET NO. 16-02 219 DATE: July 15, 2020 ORDER The appeal as to the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is moot, and the claim is dismissed for lack of jurisdiction. REMANDED The claim of entitlement to service connection for alcohol dependence, to include as secondary to PTSD is remanded. The claim of entitlement to service connection for sleep apnea (hereinafter OSA), to include as secondary to PTSD is remanded. FINDING OF FACT The Agency of Original Jurisdiction (AOJ) in the May 2020 rating decision granted service connection for the Veteran’s PTSD rated at 70 percent disabling, effective August 29, 2014. CONCLUSION OF LAW The Board lacks jurisdiction over the claim of service connection for PTSD, because that claim has been granted and rendered moot. 38 U.S.C. §§ 7104 (a), 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202, 20.204 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Marine Corps from September 1988 to September 1992. This matter is before the Board of Veteran’s Appeals (Board) from the December 2014 and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for an acquired psychiatric disorder, OSA, and alcohol dependence. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge at the RO in New York, in August 2018. A written transcript of that hearing has been prepared and associated with the evidence of record. In April 2019, the Board issued a decision on the Veteran’s claims, and remanded the claims herein for further development. A VA examination was provided to the Veteran for his PTSD and as indicated below he was service connected for PTSD. However, the remand also found that the Veteran’s alcohol dependence and OSA were inextricably intertwined with the Veteran’s PTSD and these issues were not addressed. Entitlement to service connection for PTSD In this case, the Veteran's claim of service connection for PTSD was granted in a rating decision issued by the AOJ in May 2020. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.202 (2019). Here, as a result of the AOJ's action, there no longer remains a case or controversy with respect to this claim. Therefore, the Board lacks jurisdiction over this issue because it has been granted and rendered moot on appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. Therefore, dismissal of this claim is warranted. REASONS FOR REMAND Entitlement to service connection for alcohol dependence, to include as secondary to PTSD The Veteran contends that his alcohol dependence is secondary to his PTSD. He also contends that his military service aggravated his alcohol dependence. The Board notes that the Veteran’s service treatment records noted the Veteran’s citations for driving while intoxicated (DWI) on his entrance examination in December 1987, his additional alcohol dependence treatment both in-patient and out-patient, and a diagnosis of alcohol abuse. The Veteran in his August 2018 hearing testified that his alcohol dependence started while he was in the military, but that he had been sober since March 2014. However, further review of the Veteran’s medical treatment records indicated a long history of alcohol abuse, beginning in the Veteran’s younger teenage years. The Board finds the Veteran has a current disability, as alcohol abuse is a life-long disease and period of remission does not equate to no diagnosis, there is evidence of alcohol abuse treatment and complaints in service, and the Veteran’s testimony of his military service causing his alcohol abuse and testimony linking his alcohol abuse to his PTSD. However, the Board finds that there is insufficient medical evidence to determine the Veteran’s claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran received a VA examination for his PTSD in August 2019, however, this examination makes no mention of the Veteran’s alcohol dependence and is therefore inadequate for the Veteran’s claim for service connection for alcohol dependence. The Board notes that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2014); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so.). Accordingly, upon remand the Veteran requires a VA examination to address his claims for alcohol dependence due to his PTSD. Entitlement to service connection for OSA, to include as secondary to PTSD The Veteran contends that he is entitled to service connection for OSA, and also contends that his OSA is due to his service-connected PTSD. The Veteran has been diagnosed with OSA in April 2015. The Veteran’s lay statement submitted in June 2015 indicated that the Veteran since discharge in 1992 had sleeping issues, and that it had evolved to full sleep apnea, and that his sleep apnea problem was aggravated by his PTSD. Additionally, the Veteran’s August 2018 hearing testimony indicated that he had sleeping issues while in service because he slept in a truck for 3 and a half years. The Board notes that the Veteran has a current disability, testimony linking his OSA to his PTSD and to service, but there is insufficient evidence to determine whether the Veteran’s military service or his PTSD have a causal or aggravating connection to his OSA. Therefore, the Board must remand for an examination as to whether the Veteran’s OSA is directly related to his active military service or caused by or aggravated by his service-connected PTSD. See McLendon, 20 Vet. App. at 79. Although further delay is regrettable, the Board finds that a remand is necessary in this case 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. § 5103(A) (2012); 38 C.F.R. § 3.159 (2019). These matters are REMANDED for the following actions: 1. This case has been advanced on the docket. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his alcohol dependence. The Board notes that the Veteran has a current diagnosis of alcohol dependence. After performing all indicated tests and studies, the examiner is to address the following: (a.) Is there clear and unmistakable evidence of a preexisting alcohol abuse in this case? The Board notes that the Veteran’s entrance examination noted the Veteran’s DWI from October 1987 and counseling from November 1987 due to drinking, but no diagnosis and as such, the presumption of soundness does attach in this case and can only be overcome by a showing of clear and unmistakable evidence of a preexisting alcohol abuse or dependence. The Board notes that the term “clear and unmistakable” is defined in applicable regulations to mean “obvious or manifest.” 38 C.F.R. § 3.304(b). This term has been further defined by the Court as meaning that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Board further notes that while the Veteran’s DWI is noted the Veteran was not found to be diagnosed with alcohol abuse disorder. Furthermore, as previously noted, the Veteran was found not to have any significant disabilities and was deemed to be normal at the time of enlistment. (b.) If, and only if, the examiner concludes that there is clear and unmistakable evidence of a preexisting alcohol abuse disorder, then the examiner should further opine as to whether there is clear and unmistakable evidence demonstrating that any preexisting alcohol abuse disorder was not aggravated beyond the natural progression of the condition as a result of active military service. The Board does note the Veteran’s in-service outpatient and in-patient treatment for alcohol abuse. (c.) Finally, if it is determined that there is not clear and unmistakable evidence of a preexisting alcohol abuse disorder, the examiner must opine as to whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should address the Veteran's service treatment records of complaints and treatment in service. (d.) The examiner should also provide an opinion as to whether it is at least as likely as not that any currently diagnosed alcohol dependence was either 1) caused by, or 2) aggravated by, a service-connected disability. The term “aggravation” in the above context refers to a any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence, beyond its natural progression, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Ward v. Wilkie, 31 Vet. App. 233 (2019), In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. Specifically, those statements indicating a connection to the Veteran’s diagnosed alcohol dependence and his service-connected PTSD. 3. The Veteran should be scheduled for a VA examination regarding his OSA. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. After performing all indicated tests and studies, the examiner should address the following: (a.) For the Veteran’s OSA, opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service. (b.) If and only if the Veteran’s alcohol dependence is associated with his PTSD, does the examiner need to provide an opinion as to whether it is at least as likely as not that his currently diagnosed OSA was either 1) caused by, or 2) aggravated by, a service-connected disability, such as his PTSD or his alcohol dependence. The term “aggravation” in the above context refers to a any incremental increase in disability, any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence, beyond its natural progression, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 4. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Appellant and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.