93 Decision Citation: BVA 93-20885 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 88-54 593 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for drug and alcohol abuse secondary to post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for organic brain syndrome. 3. Entitlement to a rating in excess of 50 percent for PTSD. 4. Entitlement to a total rating on the basis of individual unemployability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD V. Jordan, Counsel INTRODUCTION The veteran had active service from October 1965 to July 1967. Service connection for PTSD was granted by rating action of January 1986; a 10 percent evaluation was assigned. By rating action of July 1986, a 30 percent evaluation was assigned. The current appeal came before the Board of Veterans' Appeals (hereinafter the Board) from a rating decision of December 1986 from the Chicago, Illinois Regional Office (hereinafter RO), which assigned a 50 percent evaluation from June 1986. The notice of disagreement was received in July 1987. The statement of the case was issued in January 1988. The substantive appeal was received in March 1988. The veteran testified at a hearing on appeal in July 1988. The appeal was initially received at the Board in November 1988 and docketed in January 1989. By decision of the Board in May 1989, an increased rating for PTSD prior to February 3, 1988, was denied; the issue of entitlement to an increase in the evaluation assigned for PTSD from February 3, 1988, was remanded to the originating agency for further action, including examination of the veteran. By rating action of May 1990, service connection for a "possible" cerebrovascular accident was denied. In a January 1991 rating action, service connection was denied for cerebellar degeneration on the basis that it was first noted at a time too remote from service and was probably alcohol related. The veteran was notified of this action in January 1991. In February 1991, the veteran indicated that he wished to be re-evaluated for his PTSD and that his treatment had impaired his ability to find permanent and gainful employment. By rating action of April 1991, the 50 percent evaluation assigned for PTSD was confirmed. In the VA Form 1-646, dated in April 1992, the veteran's representative raised the issues of entitlement to service connection for alcohol and substance abuse, entitlement to service connection for organic brain syndrome, and entitlement to a total disability rating based on individual unemployability. He also raised the issue of whether there was clear and unmistakable error in the January 1986 rating decision which determined that the veteran's alcohol abuse was due to willful misconduct. It is argued that the RO failed to consider whether the veteran's alcohol abuse was secondary to PTSD under the provisions of Chapter 20 of VA Information Bulletin 11-56, Physician's Guide for Disability Evaluation Examinations, (March 1, 1985) (hereinafter Physician's Guide). Service connection for alcohol or other substance abuse secondary to PTSD was denied by rating action of August 1992. It was further held that there was no clear and unmistakable error in the prior rating actions denying service connection for alcohol abuse. The RO noted that the claim for service connection for organic brain syndrome was moot since service connection for alcohol abuse had been denied. A supplemental statement of the case was issued in September 1992, which covered the issues of increased evaluation for service- connected PTSD to include service connection for alcohol or other substance abuse secondary to PTSD. The regulations cited in the supplemental statement of the case included provisions regarding clear and unmistakable error in prior decisions. Additional argument by the veteran's representative was presented in April 1993. It was argued that the issue of service connection for organic brain syndrome had never been properly developed, in that the findings by the Department of Veterans Affairs (hereinafter VA) indicate it may not be due to alcohol abuse but, rather, to trauma. It was suggested that the case be referred back to the RO for consideration of whether the veteran has organic brain syndrome due to a head injury during service. It was also contended that the veteran's PTSD precluded employment and that there had been clear and unmistakable error in the prior rating actions which did not consider whether the veteran's alcohol abuse was secondary to PTSD. For the above stated reasons, we construe the issues currently before the Board to be as stated on the title page. REMAND The evidence of record shows that the veteran has a long history of alcohol use/abuse. He was born in June 1945 and was over 20 years old at the time of his entrance into service. On the report of medical history at the time of his entrance into service, the veteran answered in the affirmative to the questions of whether he then or in the past had frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort. The service medical records are negative for report of alcohol abuse or head injury. On the report of medical history at the time of the veteran's separation from service, he answered in the negative to the question of whether he had or had had a history of head injury. He answered in the affirmative to the questions of whether he then had or had had frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, nervous trouble of any sort, and excessive drinking habit. In the physician's summary and elaboration portion of the examination report, it was noted that he had difficulty with sleep and initial sleep disturbance. The clinical evaluation at the time of separation from service was normal. Postservice outpatient treatment records of December 1971 reflect an impression of rule out organic brain syndrome secondary to alcohol and drug abuse. When the veteran was seen by the VA in January 1981, he indicated that he began to drink when he was 19 or 20 years old. He stated that he drank one quart of whiskey per week. He reported being in Vietnam from July 1966 to July 1967. He indicated that his helicopter had been shot down in Vietnam. The diagnosis was anxiety neurosis. When the veteran was hospitalized by the VA from April to May 1981, it was reported that he had a long history of "at least 18 years of alcohol dependence." It was noted that he had been treated for alcohol dependence in 1979 at the Chicago alcoholism treatment center for six weeks and after discharge only stayed sober one day. In the same narrative summary, it was reported that he had been drinking alcohol since age 18 and that he drank from a quart of whiskey per week to a quart of whiskey per day. The diagnoses included alcohol dependence. On a VA psychiatric examination in March 1983, it was reported that the veteran had attended a Day Hospital at the VA West Side Medical Center, Chicago, where he received Librium. He indicated that he began drinking when he was about 19 or 20 years old. On the special gastrointestinal examination, a history of alcoholism since 1965 was reported. By rating action of April 1983, service connection was denied for PTSD; alcohol abuse was noted to be a disability which was the result of the veteran's own willful misconduct. When the veteran was hospitalized by the VA from October 1985 to May 1986, it was reported that he had been drinking to excess during the latter part of his tour in Vietnam and that this contributed to his loss of memory. Service connection for PTSD was granted by rating action of January 1986. The veteran's history of alcohol abuse was determined to be a disability resulting from willful misconduct. The veteran was not advised of the determination regarding alcohol abuse. When the veteran was hospitalized by the VA from December 1987 to February 1988, the diagnoses included alcohol dependence and drug abuse (morphine, codeine). On a VA Psychotherapy Summary of March 1988, it was reported that the there was evidence of opiate use on urinalysis. The veteran denied opiate use and claimed that there must have been some tampering with the sample. In a VA record of hospital admission, covering an admission of December 1990, it was reported that the veteran had a history of chemical dependency for 25 years and that he drank as much as he could. On a VA examination in August 1991, the veteran reported that he drank and used marijuana just to sleep. He indicated that he had had a stroke. The diagnoses included alcohol and substance abuse, chronic, and organic brain syndrome, probably secondary to trauma, but the etiology was unclear. By rating action of October 1991, the evaluation assigned for the veteran's PTSD was confirmed; it was noted that he had significant impairment of industrial adaptability due to chronic alcohol/substance abuse and organic brain syndrome/cerebellar degeneration, and history of paranoid personality disorder which may not be considered in the evaluation of his service-connected psychiatric disorder. In the VA Form 1-646 filed on behalf of the veteran in April 1992 (and again in March 1993) it was contended that clear and unmistakable error may have occurred, beginning with the January 1986 rating action, which first granted service connection for PTSD, because the RO failed to consider whether the veteran's alcohol abuse was secondary to PTSD per Chapter 20 of the VA Physician's Guide. It was also argued that the veteran's claim for disabilities related to alcohol preceded the enactment of Public Law 101-508, which eliminated compensation for disabilities resulting from abuse of alcohol or drugs. It was suggested that a re-evaluation of the veteran's claim be made to determine if his alcohol related disabilities are part and parcel of his service-connected PTSD. It was further contended that the veteran was disabled due to his service-connected disabilities. In May 1992, the veteran's claim folder was referred to the Chief, Outpatient Services to determine whether the veteran's substance abuse was primary or secondary to his PTSD. In a June 1992 memorandum, a board of three VA physicians stated that they reviewed the veteran's claims folder and determined that the veteran satisfied the criteria for alcohol abuse and dependence and that there was no evidence of alcohol abuse/dependence or any Axis II disorder prior to enlistment. It was their conclusion that the pattern of relapse of alcoholism, symptoms reported prior to alcohol use, and the absence of any evidence of alcohol abuse/dependence prior to enlistment, favored the possibility of alcoholism being secondary to chronic PTSD. The reviewers did not cite any specific evidence to support their conclusions but did indicate that they had reviewed the veteran's claims folder. By rating action of August 1992, service connection for alcohol and other substance abuse was denied. It was stated that the current Physician's Guide provisions regarding substance abuse were dated in November 1986 and came after the January 1986 rating action. It was also noted that the January 1986 rating action may have preceded the provisions of M21-1, § 50.40. In the presentation on behalf of the veteran in April 1993, it was argued that the findings of the board of three psychiatrists were ignored by the originating agency in its determination. It was further argued that the issue of service connection for organic brain syndrome has never been properly developed, in that a VA physician has indicated that the etiology may be trauma. The representative notes that the veteran has reported that he had severe head trauma as a result of being in a helicopter which was shot down. The only issues certified for appellate consideration were entitlement to an increased rating for PTSD and entitlement to service connection for alcohol or other substance abuse. However, a review of the evidence reflects that the issues of entitlement to service connection for organic brain syndrome and entitlement to a total rating based on individual unemployability have also been raised. These issues are inextricably intertwined with the issues certified for appellate consideration. Under these circumstances, we believe that these matters should be adjudicated prior to appellate disposition because they are "inextricably intertwined" with the issue of entitlement to a total rating based on individual unemployability. Consolidation of matters so linked is preferable to piecemeal litigation in order to preserve judicial resources. Hayes v. Derwinski, U.S. Vet. App. No. 90-168 (Apr. 3, 1991) and Hoyer v. Derwinski, U.S. Vet. App. No. 90-223 (Apr. 5, 1991). As noted, a question has also been raised regarding whether the RO committed clear and unmistakable error in its decision of January 1986 which determined that the veteran's alcohol abuse was willful misconduct. This matter would appear to be moot since the veteran was never notified of any January 1986 determination on alcohol abuse. Concerning the propriety of secondary service connection itself, it is argued that the RO did not properly consider whether alcohol abuse was secondary to the veteran's PTSD as provided by the Physician's Guide. We note that, in the March 1, 1985, version of the Physician's Guide, § 20.3 it is provided that "Substance abuse may be either primary, or secondary to PTSD. Primary substance abuse and PTSD may co-exist. Only a detailed examination of the history of the substance abuse, its relation or nonrelation to PTSD symptoms and stressors, plus an adequate examination of the history for such stressors will permit a differentiation." This provision is also included in Supplement No. 1, of November 16, 1986. In addition, for compensation claims filed between August 1964 and October 31, 1990, VA regulations provided that organic diseases which were a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, were not considered of willful misconduct origin. 38 C.F.R. § 3.301(c)(2) and VA M21-1 § 50.40. For claims filed after October 31, 1990, the law prohibits the grant of service connection for primary or secondary disabilities that resulted from abuse of alcohol or drugs, or willful misconduct under the provisions of Public Law 101-508. We note that, when the veteran filed his initial claim for compensation benefits in September 1980, he indicated that he had been treated at the VA West Side (Chicago VA Medical Center) for his nerves in 1967 and 1978. In other treatment records, it has been indicated that his treatment at the West Side facility was for alcohol dependence. In the December 1985 examination by the VA, which formed the basis for the grant of service connection for PTSD in January 1986, the veteran indicated that he felt his psychological problems caused his drinking problem. In light of the above, the Board is of the opinion that further development is desirable to complete the record and afford the veteran due process. The case is REMANDED for the following action: 1. The records of treatment of the veteran at the Chicago VA Medical Center between 1967 and 1979 should be obtained and associated with the claims folder. These records should include any treatment records for alcohol/drug abuse at the Day Hospital program. 2. Thereafter, the veteran's claims folder should be reviewed by a board of two psychiatrists to determine whether his alcohol/substance abuse is primary or secondary to PTSD. The reviewers should be given a copy of this decision and the veteran's complete claims folder (3 volumes). The reviewers should set forth the relevant facts relied upon as the basis for their determination. 3. Thereafter, the RO should review the determination by the board of two psychiatrists with regard to the veteran's claim for service connection for alcohol/substance abuse, and take any appropriate rating action. 4. The RO should review the veteran's claim for service connection for organic brain syndrome in light of the determination regarding service connection for alcohol/substance abuse. The originating agency should also consider whether the veteran's organic brain syndrome is the result of any trauma he had in service. In this regard, any indicated development should be undertaken. 5. After the above-requested action has been completed, the originating agency should take appropriate rating action on the veteran's claim for a total rating based on individual unemployability. Any indicated development should be undertaken. When this development has been completed, the claim should be reviewed by the RO. It should be ensured that all issues have been fully developed, including appropriate notice and proper appeal procedures by the veteran or his representative. If any benefit sought on appeal is not granted, the appellant and his representative should be given a supplemental statement of the case with regard to the additional development and should also be afforded an opportunity to respond. The record should be returned to the Board for further appellate consideration, if in order. No action by the appellant or his representative is required until further notice is received. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * D. C. SPICKLER J. J. SCHULE *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals 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 of Veterans' Appeals 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. 38 C.F.R. § 20.1100(b) (1992).