Citation Nr: 1640442 Decision Date: 10/12/16 Archive Date: 10/27/16 DOCKET NO. 07-39 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia 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 C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to May 1971. He died in February 2005. The appellant claims as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Huntington, West Virginia. The appeal was later transferred to the VA RO in Pittsburgh, Pennsylvania, and transferred again to the Huntington RO. This appeal was previously presented to the Board in August 2011, at which time it was remanded to afford the appellant a video hearing before a Veterans Law Judge. Such a hearing was scheduled for April 2014, and the appellant was notified in February 2014 of the date and location of this hearing. She did not report for the hearing, however, and to date has provided no explanation for her absence. Thus, this hearing request is considered withdrawn. See 38 C.F.R. § 20.704. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action, on her part, is required. REMAND A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2015, the Board directed the AOJ to assist the appellant in obtaining the Veteran's terminal records from Rudy Memorial Hospital in Morgantown, West Virginia. In September 2015, the AOJ sent a duty to assist letter requesting her to submit or return an authorization form for "any treatment records related to conditions you claim as causes of death." She was not specifically advised of the particular treatment records - Rudy Memorial Hospital in Morgantown, West Virginia - which had not been associated with the claims folder. As such, the Board remands this case for compliance with its prior remand directives. Additionally, in a cause of death claim, VA has a duty to obtain a medical opinion under 38 U.S.C.A. § 5103A(d) if such is needed to assist the appellant in substantiating the claim. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Under the § 5103A(d) test, VA is obliged to provide an examination when the record contains competent evidence that the indicates that the cause of the Veteran's death may be associated with active service or service-connected disability and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). At the time of his death, the Veteran was in receipt for service connection for psychoneurosis anxiety ration with posttraumatic stress disorder (PTSD), residuals of prostate carcinoma and hearing loss in the left ear. The appellate contends that the Veteran's service-connected disabilities ultimately led to his death. In particular, she contends that the Veteran's death was due to complications from medications prescribed for his service-connected disabilities. The death certificate reflects that the immediate cause of death was hepatorenal syndrome due to kidney failure and cirrhosis. Hepatitis was listed as a significant condition that contributed to the Veteran's death, but did not resulting in the underlying cause. The Veteran's post-service treatment records reflect that he underwent hepatitis C counseling by VA in September 2002. He reportedly was diagnosed with hepatitis C at "Butler" the previous year. VA recognizes that intranasal cocaine use is a risk factor for contracting hepatitis C. See M21-1, Chapter 4, III.iv.4.I.2.d. The Veteran's post-service treatment records reflect a history of alcohol and cocaine use which the Veteran claimed was an attempt to self-medicate his psychiatric symptoms. See, e.g., VA treatment records dated July 1983 and November 1983. Given this history, the Board finds that medical opinion is necessary to determine whether the Veteran's substance abuse - particularly his cocaine use - was proximately due to his psychoneurosis anxiety ration with PTSD. See Allen (William F.) v. Principi, 237, F.3d. 1368 (Fed. Cir. 2001) (noting that 38 U.S.C.A. §°1110 precludes compensation for primary alcohol and drug abuse disabilities but does not preclude compensation for an alcohol or drug abuse disability that is secondary to a service-connected disability). Accordingly, the case is REMANDED for the following action: 1. Assist the appellant in obtaining terminal records from Rudy Memorial Hospital in Morgantown, West Virginia as well as records of his diagnosis of hepatitis C at "Butler" in approximately 2001. The duty to assist letter should specifically advise the appellant of the exact records being sought. 2. After the above development is completed and all obtainable records have been associated with the claims file, forward the claims folder to an appropriate professional to determine the nature and etiology of the Veteran's substance abuse, including cocaine. Based on consideration of all pertinent evidence, the physician should render an opinion which addresses the following: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's substance abuse - specifically cocaine use - was a primary disorder or a secondary disorder caused and/or aggravated beyond the normal progress of the disorder by his service-connected psychoneurosis anxiety ration with PTSD? In responding to the above, the physician must consider and discuss all pertinent medical evidence to include a July 1983 VA treatment note wherein the Veteran reported that alcohol helped alleviate some of his psychiatric symptoms - specifically stating that it made him forget about the war and helped him sleep and control his anger, and a November 1983 treatment note wherein the Veteran stated that he drank heavily when stressed. 3. Thereafter, readjudicate the claim specifically considering whether the Veteran's cocaine use was due to his own willful misconduct or abuse of drugs, or whether his cocaine use was acquired as a result of his service-connected psychiatric disability. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d); Allen (William F.) v. Principi, 237, F.3d. 1368 (Fed. Cir. 2001). In light of that finding, the AOJ must reconsider the etiology of the Veteran's hepatitis C. If the claim remains denied, the appellant and her representative should be furnished a supplemental statement of the case and an appropriate period of time to respond. 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 2014). _________________________________________________ T. MAINELLI 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) (2016).