Citation Nr: 1621882 Decision Date: 06/01/16 Archive Date: 06/13/16 DOCKET NO. 11-10 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky 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. Connolly, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to December 1979. He died in June 2010. The Appellant is the Veteran's surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO). In July 2014, the Board remanded this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During his lifetime, the Veteran filed a claim for a nervous condition, posttraumatic stress disorder (PTSD), and alcoholism. His claim was denied in February 1995. At that time, there were two medical opinions of record. The first medical opinion dated in September 1994 opined that the Veteran had PTSD and alcohol dependence. The examiner further opined that the Veteran began experiencing symptoms of PTSD and had been using the alcohol to medicate himself and alleviate those problems. Thus, this examiner provided a diagnosis of PTSD and reported that the alcoholism was a condition that was secondary to the PTSD. The second opinion dated in January 1995 concluded that the Veteran did not have PTSD and only had alcohol dependence. The Board notes that alcohol dependence, without being a condition secondary to a service-connected disorder, is precluded from being service-connected. See 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.303(c)(3) and (d); see also VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). In a February 1995 rating decision, service connection for a nervous condition, PTSD, and alcoholism was denied. The Veteran initiated an appeal with a notice of disagreement and was issued a statement of the case, but he did not perfect an appeal. The statement of the case indicated that there was no corroboration of the Veteran's alleged stressors. In a subsequent April 2000 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for PTSD because although VA records documented a PTSD diagnosis, there was no verified stressor. The Certificate of Death reflects that the Veteran died from severe sepsis with multiorgan failure due to or as a consequence of pneumococcus pneumonia due to or as a consequence of alcoholic liver cirrhosis due to acute renal failure on dialysis due to or as a consequence of atrial fibrillation with rapid rate. Thus the Certificate of Death tends to show that alcoholic liver cirrhosis played an etiological role in causing the Veteran's death. The Appellant has advanced various theories regarding the cause of the Veteran's death. One such theory is that the Veteran's alcoholism was a result of his psychiatric disability. As noted, there is a VA medical opinion attributing the Veteran's alcoholism to his PTSD. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. In further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Thus, a pertinent consideration is if the Veteran had PTSD which was attributable to service. However, there remains a question of whether the Veteran had a verified inservice stressor. During his lifetime, the Veteran asserted that he was stationed in the area of Lai Khe, Pleiku, An Khe, and Qui Nhon with the 560th Maintenance Corps and that he also drove for the 88th Transportation Company. He described being subjected to enemy fire on several occasions including at the An Khe Pass, Pleiku Pass, and at the pass at Dak To. He stated that a buddy of his perished, but he did not name him. He also indicated that he experienced enemy ambushes while driving a truck and was constantly scared. The Veteran's DD Form 214 does not document any specific combat awards. The Veteran served in the Army and was stationed in Vietnam from May 28, 1968 to February 18, 1970. Since the Veteran is deceased, a narrower window for the alleged stressors cannot be obtained from him. However, the Board finds that the Veteran's personnel file should be obtained in order to determine if a narrower window can be determined based on his statement regarding when the stressors occurred. Then, the Joint Services Records and Research Center (JSRRC) should be contacted to attempt to verify the alleged stressor. Then, a VA medical opinion should be obtained. It should be noted that the two prior VA opinions do not specifically indicate that either was conducted by a psychiatrist or psychologist. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's personnel file and attempt to narrow the window of when the Veteran was stationed in Vietnam with the 560th Maintenance Corps and purportedly the 88th Transportation Company in the area of Lai Khe, Pleiku, An Khe, and Qui Nhon. 2. An attempt should be made to verify the Veteran's claimed stressors through the appropriate channels, to include through a Joint Service Records Research Center (JSRRC) search. The JSRRC should be provided with all pertinent information, to include copies of personnel records and unit of assignment. With regard to the Veteran's stressors, the JSRRC should be told that the Veteran claimed that while he was stationed in the area of Lai Khe, Pleiku, An Khe, and Qui Nhon with the 560th Maintenance Corps and purportedly the 88th Transportation Company, he was subjected to enemy fire on several occasions including at the An Khe Pass, Pleiku Pass, and at the pass at Dak To. The JSRRC should indicate if the Veteran's unit(s) received incoming enemy fire or ambushes in those areas in the appropriate time frame. The JSRRC should also indicate if there were any casualties in those areas, in the appropriate time frame. If the claimed stressors cannot be verified, the JSRRC should so state. 2. After the foregoing development has been accomplished, obtain a VA psychiatric opinion from a psychiatrist or psychologist. The record and a copy of this remand must be reviewed by the examiner, including the September 1994 and January 1995 VA medical reports. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that PTSD or depression had its clinical onset during active duty or was related to any in-service disease, injury, or event, to include any of the alleged stressor events, to include being fearful of enemy fire or ambushes. Also, the examiner should indicate whether the claimed stressors reported by the Veteran are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms were related to the claimed stressor. The examiner must also specifically state whether or not the claimed stressors are related to the Veteran's military service to include a fear of hostile military activity, including enemy fire. If the examiner determines that the Veteran had PTSD or depression which was related to service, the examiner should also provide an opinion as to the following and with specific reference to alcoholic liver cirrhosis: Whether the PTSD or depression and any resulting alcoholism associated with the PTSD or depression contributed substantially or materially to death, or aided or lent assistance to the production of death; whether the PTSD or depression and any resulting alcoholism resulted in debilitating effects and general impairment of health to the extent that it rendered the Veteran less capable of resisting the effects of either disease or injury primarily causing death; and/or whether the PTSD or depression and any resulting alcoholism were of such severity as to have a material influence in accelerating death. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 4. Readjudicate the claim on appeal in light of all of the evidence of record. If the issue remains denied, the Appellant should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable 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 2014). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).