Citation Nr: 1808625 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-29 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Navy from December 1959 to March 1982. He passed away in May 2011, and the appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office. The Board previously remanded this issue in June 2016. In July 2015 the appellant testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript of the hearing was prepared and added to the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, another remand is necessary for proper development of the issue. One of the Veteran's causes of death was alcoholic cirrhosis of the liver. In June 2016 the Board remanded this issue for a VA opinion to consider the appellant's contentions that the Veteran had self-medicated using alcohol to assuage the pain caused by his service-connected disabilities. The Board notes that at the time, a private physician, Dr. A.O. had already submitted a statement opining that that the Veteran's service-connected disabilities at least as likely as not complicated his sobriety and his self-medication with the use of alcohol contributed to cirrhosis, which caused the Veteran's death, but the Board found that this opinion lacked sufficient rationale. Therefore, the AOJ was directed to secure a VA opinion determining whether there was a relationship between the Veteran's death from alcoholic cirrhosis and peripheral vascular disease and his service-connected residuals of fracture of the right femur, residuals of compression fracture of the dorsal vertebrae, degenerative changes of the left hip, degenerative changes of the right hip, and painful motion of the right shoulder. The VA examiner was to specifically consider Dr. A.O.'s opinion that the Veteran's service-connected disabilities at least as likely as not complicated his sobriety and his self-medication with the use of alcohol contributed to cirrhosis, which caused the Veteran's death, and that chronic pain from service-connected disabilities contributed to hypertension complicating the Veteran's peripheral vascular disease. In August 2016 the Veteran's file was reviewed by a VA examiner who opined that there was no medical evidence that the Veteran's death from alcoholic cirrhosis and peripheral vascular disease was related to his service-connected residuals of fracture of the right femur, residuals of compression fracture of the dorsal vertebrae, degenerative changes of the left hip, degenerative changes of the right hip, and painful motion of the right shoulder. He also noted that there was no medical evidence that the Veteran's pain significantly contributed to his hypertension. The VA examiner indicated that Dr. A.O.'s opinion was mere speculation without rationale, and that the Veteran had a known history of alcohol usage without evidence that it was related to his service-connected conditions. The Board finds that this opinion is inadequate for several reasons. Preliminarily, the Board notes that this opinion merely says that there is no evidence of a connection between the Veteran's alcohol usage and his service-connected disabilities and that the private physician's opinion is speculative; however, the VA examiner's opinion does not contain any rationale citing to treatment notes or statements to support his opinion. The opinion states that the Veteran had a known history of alcohol usage, but does not provide any further evidence that explains why there was no connection to his service-connected disabilities. The VA examiner's opinion also does not cite to any medical studies or other literature to substantiate the lack of connection between the Veteran's alcohol usage and his service-connected disabilities; it also appears as though the VA examiner's opinion does not consider the appellant's lay statements about the Veteran's alcohol usage. Given that the VA examiner's opinion provides minimal rationale as evidenced by the lack of references to treatment notes, lay statements, or medical literature, the Board finds that remand is necessary to secure an addendum opinion on whether the Veteran's alcohol use is related to his service-connected disabilities. The outstanding question is whether service-connected disabilities were the proximate cause of alcoholic cirrhosis. See 38 C.F.R. §§ 3.310, 3.312 (2017); see also VAOGCPREC 7-99 (June 1999) (holding that VA may award dependency and indemnity compensation based on the veteran's death from a substance-abuse disability secondarily service connected under § 3.310(a)); C.f. VAOGCPREC 1-2017 (January 2017) (discussing proximate cause). Accordingly, the case is REMANDED for the following actions: 1. Send the claims file to an examiner to determine whether there is a relationship between the Veteran's death from alcoholic cirrhosis and peripheral vascular disease and his service-connected residuals of fracture of the right femur, residuals of compression fracture of the dorsal vertebrae, degenerative changes of the left hip, degenerative changes of the right hip, and painful motion of the right shoulder. The examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that the service-connected disabilities listed above: a) Caused the Veteran to drink alcohol. b) If so, whether the drinking of alcohol as a result of the service-connected disabilities was a substantial factor in causing alcoholic cirrhosis. c) Whether the alcoholic cirrhosis would not have occurred but for the drinking of alcohol caused by the service-connected disabilities. In forming the opinion, the examiner must address the September 2015 medical opinion from Dr. A.O., a private physician, who opined that the Veteran's service-connected disabilities at least as likely as not complicated his sobriety and his self-medication with the use of alcohol contributed to cirrhosis, which caused the Veteran's death. The examiner should also address the private physician's opinion that chronic pain from service-connected disabilities contributed to hypertension complicating the Veteran's peripheral vascular disease. A complete rationale should be provided for the opinion expressed by the examiner, to include citations to treatment notes, lay statements, and any medical literature, as necessary. 2. Thereafter, adjudicate the appellant's claim. If the decision remains denied, she and her representative should be provided with a supplemental statement of the case and given an opportunity to respond thereto. 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. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).