Citation Nr: 0318290 Decision Date: 07/30/03 Archive Date: 08/05/03 DOCKET NO. 00-00 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from October 1969 to May 1971. He died on April [redacted] , 1998. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in August 1999 by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). A rating decision in June 1998 denied the appellant's claim of entitlement to service connection for the cause of the veteran's death. That rating decision also denied entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 and accrued benefits. The appellant did not file a timely notice of disagreement with the rating decision of June 1998, which became final. See 38 U.S.C.A. § 7105 (West 2002). Thereafter, the appellant submitted additional evidence in an attempt to reopen her claim for service connection for the cause of the veteran's death. A decision of the Board in March 2001 found that the additional evidence was new and material, reopened the claim for service connection for the cause of the veteran's death, and remanded the case to the RO for further development of the evidence. The appellant has not attempted to reopen her claims for DIC under the provisions of 38 U.S.C.A. § 1318 and accrued benefits, and so those issues are not before the Board at this time. A decision of the Board dated May 28, 2002, denied the appellant's claim for service connection for the cause of the veteran's death. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims, which, upon a joint motion by the Secretary of Veterans Affairs and the veteran-appellant, vacated the Board's May 28, 2002, decision and remanded the matter to the Board for further proceedings. REMAND The Board notes that it is not in dispute that the veteran died from closed head trauma sustained in a one car motor vehicle accident on a county road in Oklahoma at approximately 1230 a.m. on the night of April [redacted] , 1998. At the time of the veteran's death, service connection was in effect for post-traumatic stress disorder (PTSD), evaluated as 100 percent disabling. On April 6, 1998, the veteran was seen by a psychiatrist at a VA mental health clinic. The diagnoses were PTSD and alcohol dependence, in remission. The treatment note stated that the veteran was to continue taking the following medications: fluoxetine [Prozac] 20 milligrams at breakfast and lunch (40 milligrams per day); traxodone 100 milligrams, three at bedtime; and diazepam [Valium] 10 milligrams three times daily (30 milligrams per day). According to the appellant's testimony at a personal hearing in August 1999, at the time of his death, the veteran was not living with her but was staying with a cousin. In a lay statement, a female cousin of the veteran stated that, on the night of his death, he visited her and, before he left, took some Valium, but she didn't know how many Valium tablets he took. A report by the Oklahoma highway patrol estimated that the veteran's vehicle was going 80 miles per hour prior to colliding with a post and a tree in the crash which killed him. The appellant has alleged that medication prescribed for his service connected PTSD made the veteran drowsy and thus precipitated the fatal one vehicle crash. The veteran's female cousin and another person who was present in the female cousin's house while the veteran was there immediately prior to the fatal car crash did not state that the veteran was drowsy. The appellant's representative has quoted medical literature which states that patients taking Prozac should be cautioned about hazardous machinery, including automobiles, until they are reasonably certain that the drug treatment does not affect them and that patients receiving Valium should be cautioned against driving a motor vehicle. However, neither the appellant nor her representative have alleged that Prozac and/or Valium are known to cause patients to drive at high rates of speed. In the decision of May 28, 2002, which has been vacated, the Board found that there was no probative evidence of the appellant's theory that medication which he took as prescribed for service connected PTSD made the veteran drowsy or otherwise incapacitated him to the extent that it contributed to his fatal vehicle crash. The joint motion by the parties before the Court stated that VA has not fulfilled the duty to assist the appellant in the development of facts pertinent to her claim and that an attempt should be made to discover which medications the veteran was actually taking at the time of his death and which of any such medications had been prescribed by VA for his service connected PTSD. Upon further review of the evidence of record, the Board is not aware that any individual or entity has any actual knowledge as to the various medications and doses which the veteran may have taken on April [redacted] , 1998, the day before his death, which, according to his death certificate, occurred at approximately 1230 a.m. on April [redacted] , 1998. However, the Court Order granting the joint motion is the law of this case and, accordingly, the Board finds that the case must be remanded to the RO to permit the appellant an opportunity to attempt to identify any individual or entity which she may believe has information concerning the medication or medications which the veteran may have taken soon before his death and to state the basis for her belief. In the event that the appellant alleges that an individual or entity has such information, VA will attempt to obtain any evidence which may be available from such persons or entities. Under the circumstances, this case is REMANDED to the RO for the following: 1. The RO should write to the appellant and request that she identify any individuals or entities who have actual knowledge of the medications and doses of medications which the veteran took on April 16 and [redacted] , 1998, prior to his death and that she state why she believes such individuals and/or entities have such information. 2. In the event that the appellant identifies any individuals or entities, the RO should contact them and request that they provide evidence as to the medications and doses of medications which the veteran took on April 16 and [redacted] , 1998. Following completion of these actions, the RO should review the evidence and determine whether the appellant's claim may now be granted. If the decision remains adverse to the appellant, she and her representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and an opportunity to respond thereto. The SSOC should notify the appellant of the evidence which would be needed to substantiate her claim and whether VA or the claimant is expected to obtain and submit such evidence. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this REMAND are to assist the appellant and to comply with the Order of Court granting the joint motion. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the appellant until she receives further notice. The appellant has the right to submit additional evidence and argument on the matter which the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ F. Judge Flowers Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2002).