Citation Nr: 18155689
Decision Date: 12/06/18	Archive Date: 12/04/18

DOCKET NO. 16-50 073
DATE:	December 6, 2018
REMANDED
Entitlement to service connection for the cause of the Veteran's death is remanded.
REASONS FOR REMAND
The Veteran served on active duty from July 2007 to September 2012.
The Veteran had pending claims at the time of his death.  The Board notes that in April 2018 the VA Regional Rffice (RO) granted the appellant’s request for substitution.  The Board further notes that the pending claims have not yet been certified to the Board and are not currently ready for Board review.  
1. Entitlement to service connection for the cause of the Veteran's death is remanded.
The Veteran’s death certificate indicates that the Veteran died in May 2016 due to cocaine intoxication.  In March 2017 the appellant’s attorney asserted that the Veteran used cocaine to self-medicate his service-connected depression.  The attorney referred to a medical opinion of a Homer Skaggs, M.D., in support of this theory.  The attorney also referred to a lay statement made by the appellant.  The record does not include the medical opinion or the lay statement the attorney stated that he had enclosed.  The attorney must be given another opportunity to submit these documents.  
Given the above, the Board finds that once the missing evidence has been submitted an appropriate medical opinion is necessary to determine whether the Veteran’s cocaine use was proximately due to his service-connected depression.  See Allen (William F.) v. Principi, 237, F.3d. 1368 (Fed. Cir. 2001) (noting that 38 U.S.C. §°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).
The matter is REMANDED for the following action:
1. Request that the appellant and her attorney submit the lay and medical statements discussed, but not submitted, in the March 6, 2017 letter from the Veteran’s attorney.
2. After the above development is completed, forward the claims folder to an appropriate professional to determine the nature and etiology of the Veteran’s cocaine abuse.
Based on consideration of all pertinent evidence, the examiner should render opinions which address the following:
Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s 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 depression?
Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s cocaine use was a secondary disorder caused and/or aggravated beyond the normal progress of the disorder by any other disability other than depression?
Reasons and bases should be provided for all opinions.  
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.  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.

 
G. A. WASIK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. E. Jones, Counsel