Veteranclaims’s Blog

March 30, 2012

Single Judge Application, Delisio, 25 Vet.App. at 54; Investigation of Casual Disease as Service-Connected

Excerpt from decision below:
The appellant argues that the August 2007 VA examination was inadequate because it failed to provide an opinion on the potential secondary relationship between the appellant’s chronic substance abuse and his service-connected PTSD. Appellant’s Brief (Br.) at 4-7. In his reply brief, the appellant also argues that the Court’s recent holding in DeLisio v. Shinseki, 25 Vet.App. 45 (2011) is controlling, and that his alcohol and drug addiction were
reasonably encompassed by his service-connected PTSD claim. Appellant’s Reply Br. at 2-4. He thus contends that “VA was under a duty to investigate and develop a possible theory of secondary service connection [for the appellant’s chronic substance abuse].” Appellant’s Reply Br. at 4. The Secretary responds that the August 2007 examination is adequate for rating purposes because the examiner was not required to opine on the relationship between the appellant’s substance abuse and his service-connected PTSD. Secretary’s Br. at 5-9. The Court agrees with the Secretary that the August 2007 examination is adequate.
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“Additionally, DeLisio is not for application here. DeLisio held that if the condition for which VA benefits are 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, the Secretary 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. Delisio, 25 Vet.App. at 54. The appellant is already service connected for the condition for which benefits are sought, PTSD. DeLisio would apply only where substance abuse was the condition the appellant was initially seeking service connection for, and information obtained during the
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processing of the substance abuse claim reasonably indicated that PTSD may have caused the underlying substance abuse condition.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-4072
GATES D. ROBERTSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Gates D. Robertson, through counsel,
appeals a
September 17, 2010, Board of Veterans’ Appeals (Board) decision that
denied entitlement to an
initial disability rating in excess of 50% for post-traumatic stress
disorder (PTSD). This appeal is
timely, and the Court has jurisdiction to review the Board’s decision
pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Both parties filed briefs, and the appellant
filed a replybrief. Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the
following reasons, the Court will affirm the Board’s decision.
I. BACKGROUND
The appellant served honorably on active duty in the U.S. Army from June
1970 to June
1972, including service in Vietnam. Record of Proceedings (R.) at 1097.
While in Vietnam the
appellant experienced several confirmed stressors, including enemy attacks
and one incident in
particularwheretheappellant tried unsuccessfullyto help ableedingsoldier,
andwatchedthesoldier
die. R. at 330, 894-95. The appellant contends that he began drinking and
abusing drugs for the first
time following this tragic event. R. at 330, 894-95.

The appellant initiallyfiled a claim for disabilitybenefits for PTSD in
July1996. R. at 1065-
68. A VA regional office (RO) denied the appellant’s claim in May 1997. R.
at 994-99. No appeal
was filed, and this determination became final. In August 2002, the
appellant sought to reopen his
claim (R. at 985), but was denied in January2003 when the RO determined
that no new and material
evidence had been submitted (R. at 958-62).
The appellant subsequently submitted more evidence that was received by VA
on June 30,
2003, and the RO found that new and material evidence had been submitted
to reopen his claim for
PTSD and granted entitlement to a 30% disability rating for PTSD in March
2005 effective the date
of the receipt of the evidence. R. at 786-90. The appellant filed a Notice
of Disagreement in
November 2005 arguing that he deserved a higher rating. R. at 542. In
October 2006, the appellant
was granted a 50% rating for PTSD (R. at 447-450), and immediately
appealed this decision stating
he “want[ed] to continue his appeal to the Board . . . for a higher
compensation rating for his PTSD”
(R. at 442).
VAprovidedacompensation andpension(C&P)examination in August 2007(R.at321-
33),
during which the examiner noted that the appellant
continues to meet criteria for PTSD. He presents with reexperiencing,
avoidance and
hyperarousal symptoms consistent with PTSD. [The appellant’s] symptoms are
moderately affecting his social, work and psychological functioning. Based
on his
self report and a comparison from his last C&P exam, his symptoms have not
increased or changed significantly. [The appellant’s] symptoms do affect
his
employment; however, his current unemployment is not directly related to
his PTSD
symptoms. Instead [his current unemployment] is secondary to his drug use
and subsequent arrest. R. at 330-31.
In August 2010, the American Legion, on behalf of the appellant, submitted
the following statment to the Board:
The veteran began using illicit drugs and alcohol as a means of overcoming
combat stress during service. It is unfortunate that the habit has continued long
after service. . . . Considering the veteran only began illicit drug and alcohol
use to cope with the stress of combat, [t]he American Legion argues that the veteran’s
lower level of functioning has everything to do with his PTSD. Further, 38 C.F.R. § 3.
301 (c)(2), stipulates that “[o]rganic diseases and disabilities which are a secondary
result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will
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not be considered of willful misconduct origin.” Also, 38 C.F.R. § 3.301 (
c)(3) stipulates that “[w]here drugs are used for therapeutic purposes or where
use of drugs or addiction thereto, results from a service-connected disability, it will
not be considered of misconduct origin.” Therefore, the “lower level of
functioning” that developed as result of the veteran’s alcohol/drug abuse and dependency is
subject to compensation anyways. R. at 20-21. In September 2010, the Board relied on the August 2007
examination to find that a 50% disability rating more closely approximated the severity of the
appellant’s PTSD. R. at 14. This appeal ensued.

II. ANALYSIS
The appellant argues that the August 2007 VA examination was inadequate because it failed to provide an opinion on the potential secondary relationship between the appellant’s chronic substance abuse and his service-connected PTSD. Appellant’s Brief (Br.) at 4-7. In his reply brief, the appellant also argues that the Court’s recent holding in DeLisio v. Shinseki, 25 Vet.App. 45 (2011) is controlling, and that his alcohol and drug addiction were
reasonably encompassed by his service-connected PTSD claim. Appellant’s ReplyBr. at 2-4. He thus contends that “VA was under a duty to investigate and develop a possible theory of secondary service connection [for the appellant’s chronic substance abuse].” Appellant’s Reply Br. at 4. The Secretary responds that the August 2007 examination is adequate for rating purposes because the examiner was not required to opine on the relationship between the appellant’s substance abuse and his service-connected PTSD. Secretary’s Br. at 5-9. The Court agrees with the Secretary that the August 2007 examination is adequate.
Under 38 U.S.C. § 5103A(d), the Secretary’s duty to assist includes, in appropriate cases, “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” Although VA need not provide a medical examination in all cases, “once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one.”
Barr v. Nicholson, 21 Vet.App. 303,311(2007). A medical examination is considered adequate “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the
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disability, if any, in sufficient detail so that the Board’s ‘”evaluation of the claimed disability will be
a fully informed one.”‘” Stefl v.Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”). “Whether a medical opinion is adequate is a finding of fact, which this Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.
App. 97, 104 (2008). A factual finding is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The August 2007 examination was provided in connection with his appeal for
a higher rating
for PTSD. The examiner provided a thorough report that compared his
current PTSD condition with
findings from earlier examinations. See R. at 321-33. In determining that
the appellant’s PTSD had
not worsened, the examiner sufficiently described the effect the PTSD had
on his daily life. The
examiner also noted that the appellant was still struggling with chronic
substance abuse. R. at 322-
33. However, because there is no secondary service-connection claim for
substance abuse resulting
from service-connected PTSD currently before the Court, this argument is
not a basis for error. The
appellant makes no arguments with respect to the adequacy of the PTSD
evaluation. The Board’s
determination that this examination was adequate is therefore not clearly
erroneous. See D’Aries,
supra.
Additionally, DeLisio is not for application here. DeLisio held that if the condition for which VA benefits are 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, the Secretary 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. Delisio, 25 Vet.App. at 54. The appellant is already service connected for the condition for which benefits are sought, PTSD. DeLisio would apply only where substance abuse was the condition the appellant was initially seeking service connection for, and information obtained during the
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processing of the substance abuse claim reasonably indicated that PTSD may have caused the underlying substance abuse condition. These are not the facts of this case, and the Court therefore discerns no merit in this argument. However, if the appellant believes that he has a substance abuse claim secondary to his PTSD that remains pending and unadjudicated, the
appropriate procedure is
to pursue a resolution of the claim by VA, e.g., seek issuance of a final
RO decision with proper
notification of appellate rights and, if the decision is unfavorable,
initiate a Notice of Disagreement. See 38 U.S.C. §§ 5104, 7105; DiCarlo v. Nicholson, 20 Vet.App. 52, 56 (
2006). If the Secretary fails to process the claim, then the appellant can file a petition with
this Court challenging the Secretary’s refusal to act. See DiCarlo, 20 Vet.App. at 56-57 (citing
Costanza v. West, 12 Vet.App. 133, 134 (1999)).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s September 17, 2010, decision is AFFIRMED.
DATED: March 16, 2012
Copies to:
Mark R. Lippman, Esq.
VA General Counsel (027)
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