Citation Nr: 1336716 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 07-31 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to additional burial benefits. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to May 1969. Among other decorations, he received a Purple Heart for this service. The appellant is his surviving widow. The current matter comes before the Board of Veterans' Appeals (Board) from a rating decision dated in March 2007 and mailed to the appellant along with a letter in April 2007. Service connection for the cause of the Veteran's death was denied by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in the rating decision. The letter further referenced denial of burial benefits over and above those already awarded. The appellant appealed each of these determinations. In May 2010, a hearing before the undersigned was convened at the RO. The Board denied service connection for the cause of the Veteran's death and additional burial benefits in an August 2010 decision. The appellant appealed. The United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision affirming the Board's decision in May 2012. However, a January 2013 Court panel opinion withdrew this Memorandum Decision and vacated the Board's decision. The issues of entitlement to service connection for the cause of the Veteran's death and entitlement to additional burial benefits thus have been remanded back to the Board for readjudication. Additional development is required prior to readjudication, as detailed herein. This matter thus is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Of note is that both the paper claims file and Virtual VA electronic claims file have been reviewed. Also of note is that the Board found in its August 2010 decision that the issues of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318, entitlement to DIC under 38 U.S.C.A. § 1151, and entitlement to a United States flag for burial purposes had been raised. These issues were referred to the RO because they had not yet been adjudicated. There remains no indication that they have been adjudicated. As such, they once again are referred to the RO. REMAND VA has a duty to assist a claimant in substantiating the benefit(s) sought. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In its panel opinion, the Court acknowledged that, once a medical opinion has been provided, this duty requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Caselaw in this regard then was cited. In particular, it was noted that such a medical opinion is adequate when it permits fully informed adjudication. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Ardison v. Brown, 6 Vet. App. 405 (1994). The Court next concluded that the Board relied on an inadequate VA medical opinion in denying service connection for the cause of the Veteran's death. The appellant's argument was summarized. Essentially, she contends that the Veteran's service-connected posttraumatic stress disorder (PTSD) caused or aggravated his nonservice-connected alcohol abuse which in turn caused or contributed to the hepatic cirrhosis that led to his death. The October 2008 VA medical opinion was summarized. It essentially was opined that it is not at least as likely as not that the Veteran's PTSD caused his alcohol abuse and more likely than not that his alcohol abuse was related to factors other than PTSD. The opinion was found to address whether his service-connected PTSD caused his nonservice-connected alcohol abuse but not whether his service-connected PTSD aggravated his nonservice-connected alcohol abuse. Thus, the Court directed that the Board obtain a new medical opinion as to whether the Veteran's service-connected PTSD aggravated his nonservice-connected alcohol abuse and, if so, to what degree. A determination concerning whether the degree of any such aggravation caused or contributed to his development of hepatic cirrhosis also was directed, to be answered via a medical opinion by a qualified medical professional if necessary. Readjudication of service connection for the cause of the Veteran's death as well as additional burial benefits finally was directed. This latter issue was included by the Court after it was found to be inextricably intertwined with the former issue. Indeed, it was recognized that the denial of additional burial benefits was premised on the Board's determination that the Veteran's service-connected PTSD was not a contributory cause of his death. Compliance with Court directives is mandatory. Forcier v. Nicholson, 19 Vet. App. 414 (2006). With respect to a determination concerning whether the degree of any aggravation of the Veteran's nonservice-connected alcohol abuse by his service-connected PTSD caused or contributed to his development of hepatic cirrhosis, the Board finds that a medical opinion would be of considerable assistance to readjudication even if not strictly necessary to do so. All of the aforementioned additional development directed by the Court therefore must be undertaken. Indeed, undertaking it is the only way to ensure that the appellant is afforded every possible consideration. The Board sincerely regrets the delay a remand entails, but the necessary arrangements cannot be made without remanding this matter. Accordingly, this matter is REMANDED for the following: 1. Arrange for a VA psychiatrist or psychologist to review the paper and electronic claims files, documenting such in a report to be placed in one of these files. The psychiatrist or psychologist then shall opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected PTSD aggravated his nonservice-connected alcohol abuse. If so, the degree of aggravation shall be specified. Of note in this regard is that the degree of aggravation typically is determined by comparing the baseline level of a condition absent aggravation by another condition to the level of the condition including aggravation by the other condition. If it is opined that the Veteran's service-connected PTSD aggravated his nonservice-connected alcohol abuse, the psychiatrist or psychologist shall indicate whether he/she is qualified to render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the alcohol abuse, to the degree it was aggravated by the PTSD, caused or contributed to the Veteran's development of hepatic cirrhosis which resulted in his death. If qualified to render the opinion, the psychiatrist or psychologist shall do so. If the opinion is that there was contribution, the degree shall be specified. Of concern is whether the contribution was substantial or material to the production of the Veteran's death. If not qualified to render the opinion, the psychiatrist or psychologist should so state. A clear and complete rationale (explanation) for each opinion shall be provided by the psychiatrist or psychologist in the report. A discussion of pertinent medical principles, with a citation for and copy if possible of any medical literature referenced, as they concern the pertinent medical and lay (non-medical) evidence therefore is required. 2. Only if the VA psychiatrist or psychologist opines that the Veteran's service-connected PTSD aggravated his nonservice-connected alcohol abuse and this psychiatrist or psychologist indicates that he/she is not qualified to render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the alcohol abuse, to the degree it was aggravated by the PTSD, caused or contributed to the Veteran's development of hepatic cirrhosis which resulted in his death, arrange for a medical professional who is qualified to render the opinion. The qualified medical professional shall specify the degree of any contribution and provide a sufficient rationale. See paragraph 1. 3. Finally, readjudicate the appellant's claim for service connection for the cause of the Veteran's death and for additional burial benefits. If either determination is favorable to her, furnish her and her representative with a rating decision or other appropriate documentation. If either determination is not favorable to her, furnish her and her representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. Place a copy of the rating decision, SSOC, and/or other appropriate documentation in the paper or electronic claims file. Process the issue(s) addressed in a SSOC for return to the Board. No action is required of the appellant until she is notified by the RO. However, she is advised that she has the right to submit additional evidence and argument concerning this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. The law indeed requires that all matters remanded by the Board or by the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). This Board remand is in the nature of a preliminary order and does not constitute a decision. 38 C.F.R. § 20.1100(b) (2013).