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." ===================== "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 4 processing of the substance abuse claim reasonably indicated that PTSD may have caused the underlying substance abuse condition." ========================== ---------------------------------------------------- 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 2 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 3 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 4 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) 5