Citation Nr: 1340280 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 08-19 836A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION The Appellant is represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to November 1970. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Appellant if further action is required. REMAND In September 2006, the appellant submitted the above-captioned claim, which was denied in a February 2007 rating decision. The RO ultimately determined that the appellant timely perfected an appeal, and the claim was certified to the Board for review. Generally, VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.5, 3.312 (2013). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b), (c). If the evidence shows that the veteran died of a disability that was ultimately related to his military service, the regulations do not require a service-connected disability to be the primary cause of death, only to be "etiologically related" or "causally connected." 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. At the time of the Veteran's September [redacted], 2006 death, service connection was in effect for, among other disabilities, posttraumatic stress disorder (PTSD), to which a 100 percent rating had been assigned. A certificate of death indicated that Veteran died as a result of cardiopulmonary failure, with end stage liver failure, ventilator-associated pneumonia, and sepsis listed as underlying causes of death. In her July 2008 substantive appeal, and in a subsequent statement, the appellant asserted that the Veteran experienced problems with alcohol as a result of his service-connected PTSD, and that his "heavy drinking" resulted in his end-stage liver failure. In support of this assertion, the appellant submitted a VA National Center for PTSD Fact Sheet concerning PTSD and its relationship to alcohol use. Additionally, September 2006 VA treatment reports, demonstrated that the Veteran's medical history was positive for alcoholic cirrhosis of the liver. The evidence of record did not, however, demonstrate that the Veteran's service-connected PTSD was manifested by alcohol use or abuse. VA PTSD treatment records dated in 1996 demonstrated that the Veteran consistently denying alcohol or substance abuse. The Veteran's most recent VA examination to assess the severity of his service-connected PTSD was dated in August 2000. The resulting examination report did not indicate that alcohol use/abuse was an aspect of the Veteran's service-connected PTSD. Based on the above, the Board finds that there is an indication the Veteran's end stage liver failure (alcoholic cirrhosis) was caused or aggravated by alcohol consumption/abuse allegedly associated with or aggravated by his service-connected PTSD. The Board finds, however, that the evidence of record is insufficient for purposes of adjudicating the appellant's claim. In a cause of death claim, VA has a duty to obtain an opinion if such is needed to assist the appellant in substantiating the claim. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). The Board finds that such a need exists in this case. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). Consequently, the Board finds that a remand is required in order to obtain an opinion from a VA examiner. Additionally, in a February 2010 statement, the appellant indicated that the Veteran received all of his treatment at the Frank M. Tejeda VA Community-Based Outpatient Clinic (CBOC), or the Audie L. Murphy VA Hospital, both located in San Antonio, Texas. As such, the Board finds that a remand is warranted in order to obtain all of the Veteran's relevant treatment reports from these VA medical facilities that have not already been associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that when VA has notice of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal). Accordingly, the case is REMANDED for the following actions: 1. The RO should attempt to obtain the Veteran's relevant treatment records that have not already been associated with the claims file from the Frank M. Tejeda VA CBOC and the Audie L. Murphy VA Hospital, both located in San Antonio, Texas. All efforts to obtain these records should be documented, and that documentation should be associated with the claims file. 2. The RO should send the Veteran's claims file to a VA physician to obtain an opinion concerning whether the Veteran's service-connected PTSD caused or contributed to his death. Following a review of the claims file, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service connected PTSD was productive of or manifested by alcohol use or abuse, OR that the Veteran's alcohol use or abuse was aggravated by his service-connected PTSD. If the examiner answers in the affirmative to either aspect of the above question, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) the Veteran's alcohol use or abuse associated with or aggravated by the Veteran's service-connected PTSD (a) caused or contributed substantially or materially to the Veteran's death or (b) aided or lent assistance to the production of his death, specifically in regards to the Veteran's end stage liver failure. In providing these opinions, the examiner should address the appellant's contentions, including, but not limited to, her assertion that the Veteran's "heavy drinking" was associated with his service-connected PTSD. A thorough rationale should be provided for all rendered opinions. 3. After the above requested developed has been completed, and any other development deemed appropriate by the RO, the RO must readjudicate the appellant's claim of entitlement to service connection for the cause of the Veteran's death, to include consideration of all relevant evidence of record. If the claim remains denied, the RO should issue a supplemental statement of the case to the appellant and her representative. After they have been provided a reasonable opportunity to respond, the case should be returned to the Board for further appellate review. 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 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. 2013). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).