Citation Nr: 1315338 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 07-38 019A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from March 1969 to January 1972. He died in March 2006. The appellant claims as his surviving spouse. This matter came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In July 2011 the Board remanded the appeal for additional development of the record. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As an initial matter, the Board observes that compensation shall not be paid for a disability if such is the result of the Veteran's own willful misconduct or abuse of alcohol or drugs; however, a Veteran is not precluded from receiving compensation for an alcohol abuse disability acquired as secondary to, or a symptom of, a Veteran's service-connected disability. See 38 U.S.C.A. § 1110 (West 2002); see also Allen v. Principi, 237 F.3d 1368, 1375 (Fed. Cir. 2001). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In its July 2011 remand, the Board directed that an opinion be sought with respect to whether the Veteran's alcoholism contributed to or caused the Veteran's death. In August 2011 a VA physician concluded that the Veteran had two risk factors for his fatal hepatocellular carcinoma - alcoholism and hepatitis B and C infection. She indicated that she was not able to determine which was the more likely risk factor, but that both were equal risk factors. She referred the question of whether the Veteran's alcoholism was caused by his posttraumatic stress disorder to a psychologist. Subsequently in August 2011, a VA psychologist noted that the record contained the Veteran's report of having his first drink at age 12, and that in 2001 he had reported alcohol abuse for 37 years, which would have dated onset of alcohol abuse prior to service. He concluded that while alcohol is a risk factor for liver cancer, the condition was not service related due to the Veteran's preexisting history of alcohol abuse. Unfortunately, the question of whether the Veteran's PTSD, for which he was in receipt of a 100 percent evaluation at the time of his death, aggravated his alcoholism has not been addressed. As such, the opinion by the VA psychologist is inadequate for the purpose of deciding this claim, and clarification must be sought. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA clinical psychologist who provided the August 2011 opinion and request that he review the record and provide an opinion regarding whether service-connected PTSD aggravated (i.e., chronically worsened) the Veteran's alcohol abuse. If the psychologist who provided the August 2011 opinion is unavailable, the claims file should be forwarded to a similarly qualified practitioner for the quested review and opinion. A discussion of the complete rationale for all opinions expressed should be included in the psychologist's report, to include reference to pertinent evidence where appropriate. If the psychologist is unable to offer any of the requested opinions, it is essential that he offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Then, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the appellant, she and her representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. PAPPAS 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) (2012).