92 Decision Citation: BVA 92-27490 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-05 393 ) DATE ) ) ) THE ISSUES 1. Whether new and material evidence has been submitted so as to reopen a claim of entitlement to service connection for alcoholism. 2. Entitlement to an increased evaluation for post-traumatic stress disorder, currently rated as 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his wife, and appellant's friend ATTORNEY FOR THE BOARD K. J. Spindler, Counsel INTRODUCTION The veteran is the appellant in this case. He had active military service from August 1967 to August 1969. His Department of Defense Form 214 shows that he had 100 days of time lost during that period. This case came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a September 1989 rating decision of the Sioux Falls, South Dakota Regional Office (RO) of the Department of Veterans Affairs (VA), wherein the 70 percent evaluation for the veteran's service-connected post-traumatic stress disorder was confirmed. The veteran was notified of this rating decision in October 1989. In February 1990 VA was informed that the veteran had moved to Nebraska. In August 1990 VA was informed that he had moved back to South Dakota. The veteran's notice of disagreement was received in September 1990. In it he showed a mailing address in Nebraska. Later in September 1990 the Lincoln, Nebraska RO issued a statement of the case. Additional medical evidence was subsequently added to the record (the veteran's VA claims folders), and in an October 1990 rating decision the RO confirmed the 70 percent evaluation for his service-connected post-traumatic stress disorder. In November 1990, the Lincoln, Nebraska RO issued a supplemental statement of the case. Additional medical evidence was subsequently added to the record, and in a December 1990 rating decision, the RO confirmed the 70 percent evaluation for the veteran's service-connected post-traumatic stress disorder. Also in December 1990, the veteran submitted his substantive appeal, requesting that he be afforded a personal hearing. He gave a mailing address in South Dakota. A notice of the December 1990 rating decision was mailed to the veteran utilizing a Nebraska address in January 1991, and utilizing a South Dakota address in February 1991. Additional medical evidence was subsequently added to the record, and in an April 1991 rating decision, the RO awarded the veteran a temporary total (100 percent) disability evaluation beginning January 22, 1991, based upon hospitalization for his service-connected post-traumatic stress disorder in excess of 21 days duration, under 38 C.F.R. § 4.29 (1991). The 70 percent evaluation for the service-connected disability was restored effective April 1, 1991. In May 1991 the Sioux Falls, South Dakota RO issued another supplemental statement of the case. Pursuant to the veteran's request, in June 1991 he, his wife, and a friend appeared and testified before a VA hearing officer at the Sioux Falls RO. A transcript of the hearing is on file. The hearing officer issued his decision, adverse to the veteran, in August 1991. In September 1991 the Sioux Falls RO issued another supplemental statement of the case. Additional medical evidence was subsequently added to the record, and in a rating decision later in September 1991, the RO confirmed the 70 percent evaluation for the veteran's service-connected post-traumatic stress disorder. Notice of this rating decision was mailed to the veteran in October 1991. In March 1992 the Disabled American Veterans (DAV), which organization has represented the veteran throughout this appeal, furnished written argument to the RO. The case was received at the Board in Washington, D.C. in April 1992. It was thereupon forwarded to the DAV, which furnished additional written argument to the Board in June 1992. REMAND In his contentions the veteran has asserted, in part, that his chronic alcohol abuse and the organic residuals thereof, including a seizure disorder, should be evaluated as a service-connected disability. It is contended that the alcoholism should either be granted service-connection on a secondary basis, or its manifestations should be evaluated as part and parcel of the service-connected post-traumatic stress disorder. Attention is directed to evidence that alcohol abuse was noted during the veteran's active military service. In view of the above contentions and the veteran's medical history, the Board finds that the issue of whether the veteran's alcoholism and its residuals should be rated as service connected (whether as an independent disability entity or as part and parcel of the post-traumatic stress disorder) is inextricably intertwined with the only issue prepared for appellate review, namely entitlement to an increased evaluation for the post-traumatic stress disorder. As was noted by the hearing officer in his August 1991 decision, service connection was denied for alcohol addiction in a March 1981 rating decision, and service connection was also denied for a personality disorder in an October 1981 rating decision. The Board notes that the April 1981 notice of the March 1981 rating decision referred to the veteran's alcohol addiction only as "Your other disability." However, the notice of the October 1981 rating decision, mailed to the veteran in November 1981, included express notice that his alcoholism was not service connected. The veteran is not shown to have appealed that benefit denial within one year. In the aforementioned September 1991 rating decision, it was found that no new and material evidence had been submitted in connection with the issue of service connection for alcoholism. In the October 1991 notice of the September 1991 rating decision, the veteran was informed that it was confirmed that alcoholism was not service connected. However, the issue of service connection for alcoholism was not prepared for appellate review in the September 1990 statement of the case or in any of the subsequent supplemental statements of the case, although it was mentioned that alcoholism was not service connected. Also, it has been requested that if the Board does not find that a total evaluation is warranted based on the evidence of record, the evidence before the Social Security Administration should be obtained. It is pointed out that in his August 1991 hospital report it was stated that the veteran is in receipt of Social Security benefits. In light of the foregoing, the Board finds that development of additional evidence and procedural action is needed in order to ensure that VA has fulfilled its duty to assist the veteran in connection with this appeal. Consequently, the case is hereby REMANDED to the RO for the following actions: 1. In accordance with § 9.01, Part III, and § 7.53(c), Part VI, M21-1 (Authorization and Clerical Procedures to Veterans Benefits Manual M21-1, Adjudication Procedures...), the Division of Benefit Services, Office of Disability Operations [formerly Bureau of Disability Insurance], Social Security Administration, Security West Tower Building, 1500 Woodlawn Drive, Baltimore, Maryland 21241, should be contacted and requested to furnish photocopies of the complete medical records which the Social Security Administration has on file, based upon which it (apparently) determined that the veteran is "disabled." 2. The complete records of outpatient treatment and any inpatient treatment of the veteran accorded after mid-August 1991, should be obtained from the Fort Meade, South Dakota VA Medical Center, and should be associated with the veteran's VA claims folders. 3. Thereafter, the RO should review the evidence obtained pursuant to the above development requests, in connection with both issues addressed in this decision. If the RO finds that the claim for service connection for alcoholism has been reopened with "new and material evidence," it should consider that issue de novo; that is, on the basis of the new evidence together with all of the evidence already on file in October 1981. 4. If service connection for alcoholism remains denied, a supplemental statement of the case should be prepared and furnished to the veteran and his representative, to prepare that issue for appellate review. If the claim for service connection for alcoholism is found not to have been reopened, the supplemental statement of the case should include the legal criteria governing: (a) finality of an unappealed rating decision, contained in 38 U.S.C.A. § 7105(c) (West 1991) and 38 C.F.R. § 3.104(a) (1991); (b) reopening of a claim for service connection with evidence submitted after an unappealed, adverse rating decision, contained in 38 U.S.C.A. § 5108 (West 1991), 38 C.F.R. § 3.156(a) (1991), and 57 Fed. Reg. 4,126 (1992) (to be codified at 38 C.F.R. § 20.1103); and (c) determinations of direct and secondary service connection, and service connection for disabilities of willful misconduct origin. 5. If it is determined that the October 1981 disallowance of service connection for alcoholism has been reopened with "new and material evidence," the supplemental statement of the case should include both a discussion of the reasons and bases for the decision reached based on all of the pertinent evidence of record, and the legal criteria indicated in #4(c) above. 6. If the denial of an increased (total) evaluation for compensation purposes remains denied, Issue No. 2 should also be addressed in the supplemental statement of the case. If either of the benefits sought on appeal remains denied, the veteran and his representative should be afforded the requisite 60 days to respond to the supplemental statement of the case. 57 Fed. Reg. 4,113 (1992) (to be codified at 38 C.F.R. § 20.302(c)). The case (including both volumes of the veteran's VA claims folders and any associated folders containing VA medical treatment records) should then be returned to the Board for further appellate action. By this Remand, the Board intimates no conclusion as to the final outcome of either of the issues addressed herein. The veteran need take no action unless and until he is so advised by the RO. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * C. J. STUREK (CONTINUED ON NEXT PAGE) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 57 Fed. Reg. 4,126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).