Citation Nr: 1326929 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-17 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant and observer ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran served on active duty from April 1968 to April 1970. He died in June 2005. The appellant is his surviving spouse. This case comes before the Board of Veterans Appeals (Board) on appeal of a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran testified before the undersigned at a May 2012 videoconference hearing. The hearing transcript is of record. In an August 2012 decision, the Board denied the claim. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court granted the parties' Joint Motion for Remand (Joint Motion), vacated the Board's August 2012 deciison, and returned the case to the Board for further evidentiary development. The appellant contends that service connection for the cause of the Veteran's death should be granted asserting that the Veteran's liver cancer contributed to his death, and was caused by chronic alcohol abuse, which she believed was associated with his service-connected posttraumatic stress disorder (PTSD). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 38 U.S.C.A. § 1110 does not preclude compensation for an alcohol or drug abuse disability secondary to a service-connected disability, or the use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), reh'g denied, 268 F.3d 1340 (Fed. Cir. 2001)(en banc order). The Federal Circuit cautioned that veterans may only be awarded compensation if they could adequately establish that their alcohol or drug abuse disability is secondary to or caused by their primary service-connected disorder. Service connection remains precluded for primary alcohol and drug abuse and related disabilities that were due to willful wrongdoing. See Allen at 1381. In a January 2007 opinion, a VA examiner concluded that it was less likely that the Veteran's alcohol dependency was secondary to his PTSD. In the Joint Motion, the parties' agreed that another opinion was necessary, and that the examiner should specifically consider treatment reports in the file that denoted the use of alcohol to help sleep, the need for alcohol to calm his nerves, and the association of the Veteran's drinking with the death of his son in a fire. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers who treated the Veteran for PTSD and/or alcohol dependence for the period from 1995 until his death in 2005. After securing any necessary release, the RO should obtain these records. 2. Refer the Veteran's claims file to an appropriate specialist to obtain an opinions on the etiology of the Veteran's alcohol dependence as well as the question of whether it was proximately due to or aggravated by the service-connected PTSD. The examiner must review the entire claims file. After a thorough review of the records, the examiner should answer the following questions and identify the basis upon which the opinion is based: a. Is it at least as likely as not, (i.e., is there a 50/50 chance based on the documented evidence of record) that the Veteran's alcohol dependence was causally related to or aggravated by his service-connected PTSD? b. If the answer to a. above is no, please discuss other more likely causes or contributing factors. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative, including noting whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge. 3. After the development requested above has been completed to the extent possible, review the record and readjudicate the claim for entitlement to service connection for the cause of the Veteran's death. If the benefit sought on appeal is not allowed, the appellant and her representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ FRANK J. 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) (2012).