Citation Nr: 1332707 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-18 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE 1. Entitlement to service connection for the cause of Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from January 1968 to November 1970. The Veteran died on February [redacted], 2009; the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2011, the Board denied the appellant's claims of entitlement to service connection for cause of the Veteran's death and entitlement to DIC under 38 U.S.C.A. § 1318. The appellant then appealed both claims to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Memorandum decision the Court vacated the June 2011 Board decision and remanded the issues back to the Board for further development. In June 2013, the Veteran's representative submitted additional medical evidence and additional buddy statements with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). The appellant is the surviving spouse of a Veteran who had honorable active military service from January 1968 to November 1970. He died on February [redacted], 2009; according to the Veteran's death certificate he died as a result of septicemia due to or a consequence of liver cirrhosis and chronic hepatitis C. At the time of the Veteran's death he was service-connected for posttraumatic stress disorder (PTSD) with a 70 percent disability rating and was denied service connection for hepatitis C (both by an August 2003 rating decision); he was also in receipt of a total rating based upon total disability rating based on individual unemployability (TDIU). The appellant contends that the Veteran's death is due to his military service in one of either two ways, either the Veteran's hepatitis C is directly related to his military service or his liver cirrhosis is the result of his alcohol abuse which was the result of his PTSD. First, it is asserted that the Veteran contracted hepatitis C during his military service. On a July 2003 questionnaire the Veteran indicated no risk factors for hepatitis C. However, it has been asserted, as stated in a September 2012 Court decision, that the Veteran was potentially exposed to contaminated blood when he was in "Vietnam he touched and carried bodies, and the record reflects that [the Veteran] reported having to cut limbs from a body he helped bury." The first evidence of a diagnosis of hepatitis C was not until a July 1998 VA examination report that noted a recent diagnosis of hepatitis C with etiology unknown. It is also asserted that the Veteran's cirrhosis of the liver is the result of the Veteran's alcohol abuse, which was how he treated his PTSD. At the August 2003 VA examination the Veteran stated that he had not abused drugs or alcohol for the past seven years; additionally, a December 2008 alcohol screening was negative and a February 2009 private treatment record noted that the Veteran used to drink on a regular basis until approximately one year ago. However, the appellant stated that her husband drank to forget his combat experiences. A June 2013 private medical opinion revealed that the author reviewed the medical records, lay statements, and ancillary information associated with the Veteran and his diagnoses of PTSD, alcohol dependence, hepatitis C, and septicemia. The psychiatrist stated that: We know, for a fact, that his latest use of alcohol was as late as 2006 when his deterioration from hepatic dysfunction was more than evident to [the Veteran]. This is strongly suggestive of severe alcohol dependence with [the Veteran] displaying a complete incapacity to discontinue use even when he knew that continuing alcohol utilization would lead to his death. This level of commitment to alcohol use is consistent with progressive substance use disorder disease, worsening alcohol dependence, and no evidence or suggestion that [the Veteran] had periods of sobriety for many years before his death. It was further stated that it was not possible to ascertain what component of his liver cirrhosis was associated with alcohol and which component was associate with hepatitis C; but there was no doubt that his use of alcohol contributed and potentiated his liver cirrhosis in a profound fashion. The private psychiatrist stated that, even if the Veteran did not drink for several years prior to his death, the damage from the alcohol to his liver was already in place and a cause factor in his death and he concluded that the clinical and logical progression of his illnesses connect alcohol dependence to his PTSD and to his death. He stated that the medical literature was very clear linking PTSD and alcohol dependence and substance use disorders, and it is common knowledge that alcohol utilization is associated with hepatic cirrhosis. The Board notes that a veteran can be service-connected for alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability but a veteran cannot be established for a disability resulting from willful misconduct or the primary abuse of alcohol or drugs. 38 U.S.C.A. §§ 105(a), 1131; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In the September 2013 Court Memorandum decision it was noted that the Board failed to discuss any medical authority for why the Veteran's hepatitis C could not be related to carrying bodies, that the delayed onset of hepatitis C was uncommon, or why having an open wound at the time of exposure was necessary to predicate a hepatitis C infection. In addition, the Court stated that the previous Board decision did not address the appellant's contentions that the Veteran did drink in the period right before his death. Thus, the Board finds that the appellant's claims must be sent for medical opinions to determine the nature and etiology of the Veteran's hepatitis C and to determine the relationship between the Veteran's PTSD and alcohol abuse and resulting cause of death, cirrhosis of the liver. The Board notes that the September 2013 Court Memorandum repeatedly discussed HIV; however, there is no indication that the Veteran was ever diagnosed with HIV, claimed that he had HIV, or that the Veteran or the appellant related any diagnosis of HIV to the Veteran's military service. Instead, the Board finds that the Court mistakenly indicated HIV when it meant hepatitis C. Accordingly, the case is REMANDED for the following action: 1. The appellant should be given an opportunity to identify any healthcare provider who treated the Veteran for his PTSD, hepatitis C, and cirrhosis of the liver. After securing any necessary authorization from her, obtain all identified treatment records that are not already of record, to include VA treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran's claims file must be sent to a hepatologist to determine the nature and etiology of the Veteran's hepatitis C. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should discuss the nature, onset, and etiology of the Veteran's hepatitis C. The VA examiner must discuss the following: A) A history of all the Veteran's potential risk factors of hepatitis C infection should be detailed in full. Please list and discuss all documented and reported pre-service, in-service, and post-service risk factors. B) Please discuss if an open wound at the time of exposure is a necessary predicate to a hepatitis C infection. C) Please state if it is at least likely as not (50 percent or greater probability) that the Veteran's hepatitis C is due to his military service? D) Please discuss the usual amount of time from exposure to diagnosis of hepatitis C. E) Was the Veteran's cirrhosis of the liver at least likely as not (50 percent probability or greater) related to the Veteran's hepatitis C. A complete rationale should be given for all opinions expressed. In this regard, a discussion of the facts, previous VA examinations, and medical principles involved would be of considerable assistance to the Board. 3. The Veteran's claims file must be sent to an appropriately qualified health care professional to determine the nature and etiology of the Veteran's cirrhosis of the liver. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should discuss the nature, onset, and etiology of the Veteran's alcohol abuse and cirrhosis of the liver. The VA examiner must discuss the following: A) Was the Veteran's alcohol abuse secondary to, or as a symptom of his service-connected PTSD? B) If so, was the Veteran's death at least as likely as not (50 percent probability or greater) proximately due to or aggravated by the Veteran's service-connected disabilities, to specifically include his PTSD? C) Is it at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities substantially or materially contributed to the Veteran's cause of death? D) Was the Veteran's cirrhosis of the liver at least as likely as not (50 percent probability or greater) related to the Veteran's PTSD. A complete rationale should be given for all opinions expressed. In this regard, a discussion of the facts, previous VA examinations, and medical principles involved would be of considerable assistance to the Board. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). _________________________________________________ G.A. WASIK Acting 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).