Citation Nr: 1816979 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 09-34 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from December 1971 to February 1974. The Veteran died in December 1989. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In June 2014, the Board issued a decision denying the appellant's claim. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2015, the Court vacated the June 2014 Board decision and remanded the case for further consideration consistent with a Joint Motion for Remand (JMR) filed by counsel for the appellant and the VA Secretary. In October 2015, the Board remanded the case for additional development. The case has been returned to the Board for further appellant consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that this case must again be remanded to ensure compliance with the June 2015 JMR and the October 2015 Board remand. See 38 U.S.C. § 5103A(b) (2012); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, during his lifetime the Veteran was service connected only for schizophrenia, which was rated as 100 percent disabling at the time of his death. The Veteran's death certificate lists as the immediate cause of death respiratory failure and bronchopneumonia. It does not list any other significant conditions contributing to the Veteran's death. The appellant asserts that service connection is nevertheless warranted for the Veteran's cause of death because the Veteran's service-connected schizophrenia caused the Veteran to self-medicate with illicit drugs, which in turn led to him contracting HIV or AIDS and succumbing to respiratory failure and bronchopneumonia as complications of the HIV or AIDS. The parties to the June 2015 JMR agreed that the Board erred in its June 2014 decision because, in concluding that the Veteran's intravenous drug use was not due to his service-connected schizophrenia and did not cause his fatal bronchopneumonia, the Board relied primarily on an inadequate May 2000 medical expert opinion. Specifically, the May 2000 medical expert concluded that the Veteran did not have HIV or AIDS based on the determination that there is "absolutely no documentation of a known or suspected diagnosis of AIDS in any of the medical records available to me." However, a review of the record reveals that an October 1988 chest x-ray, which is partially written in Spanish but also contains a handwritten interpretation in English, includes a reference to AIDS. The parties to the June 2015 JMR agreed, "This documentation referencing AIDS during the Veteran's lifetime should have been considered by the May 2000 expert opinion. Remand is required for a new opinion that considers this evidence." In its October 2015 remand, the Board directed the AOJ to obtain a medical opinion as to the relationship between the Veteran's service-connected schizophrenia and his intravenous drug usage, the relationship of the foregoing to any indicated diagnosis of HIV and/or AIDS, and the effect of the those entities, if any, in contributing materially and substantially in producing the Veteran's death. The Board asked that an opinion be obtained as to whether it is as likely as not that the Veteran's intravenous drug usage was part and parcel of his service-connected schizophrenia or otherwise caused or aggravated by the schizophrenia. The Board explained that this opinion should entail a discussion of the role played by the Veteran's schizophrenia and its inter-relationship with the Veteran's intravenous drug usage and any subsequent onset of HIV and/or AIDS. The Board further asked that an opinion be obtained as to whether it is at least as likely as not that any HIV or AIDS contracted by the Veteran was a direct or contributory cause of his death. On remand, a VA psychiatrist provided an addendum opinion in November 2016. In relevant part, the VA psychiatrist stated "The only one evidence found, that mentioned an intravenous drug abuse, was found at the [hospital] emergency note. Having said that, this intravenous drug abuse, was never described or cited by his fee basis psychiatrist, or by any of the several psychiatrists, that examined the veteran along his life. It is worth mentioning, that the veteran's severe schizophrenia, showed the same course of those individuals without the condition mentioned above. Therefore, the veteran's service-connected schizophrenia was not aggravated by the so called intravenous drug abuse." She further stated, "The veteran was never diagnosed with HIV/AIDS, the veteran was never treated for a HIV/AIDS. As a matter of fact, there is no evidence of such diagnosis in all the data reviewed. It is worth mentioning, the [Dr. C.], report, was based on assumptions. There is no factual evidence of an HIV/AIDS diagnosis, therefore, such opinion is mere speculations." The November 2016 addendum opinion does not comply with the June 2015 JMR or substantially complete the Board's October 2015 remand directives for multiple reasons. Firstly, the opinion does not reflect consideration of the October 1988 chest x-ray report that references AIDS. The parties to the June 2015 JMR agreed that, for an opinion to be adequate for decision-making purposes, it must reflect consideration of that piece of evidence. Secondly, the examiner's statement that "there is no evidence of such diagnosis [of HIV/AIDS] in all the data reviewed" is essentially the same as the May 2000 medical expert's statement that there is "absolutely no documentation of a known or suspected diagnosis of AIDS in any of the medical records available to me", which the parties to the JMR agreed was inaccurate in view of the October 1988 chest x-ray. Finally, the examiner provided an opinion as to whether the Veteran's service-connected schizophrenia was aggravated by his intravenous drug abuse. This opinion does not provide the information requested in the October 2015 Board remand, namely, whether the Veteran's service-connected schizophrenia caused or aggravated his intravenous drug abuse. Because the November 2016 addendum opinion does not comply with the June 2015 JMR or substantially complete the Board's October 2015 remand directives and is otherwise inadequate for decision-making purposes, the case must again be remanded so that an adequate opinion may be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Forward the record and a copy of this remand to a VA clinician qualified to provide the information requested below for preparation of an addendum opinion. The clinician selected is asked to review the record and then respond to the following: a) Provide an opinion as to whether it at least as likely as not (50 percent probability or greater) that the Veteran had a diagnosis of HIV or AIDS during his lifetime. Any opinion provided in this regard must reflect consideration of the October 1988 chest x-ray report, which is partially written in Spanish but also contains a handwritten interpretation in English and includes a reference to AIDS. The Board acknowledges that the handwritten interpretation of the x-ray report is difficult to read. The Board interprets the legible portions of that interpretation as reading, "Chest: normal cardiac silhouette. Diffuse fibro-nodular [illegible] in both lung fields suggesting non-cardiac pulmonary edema, pneumocystis carinii (AIDS), viral pneumonia, [illegible] [illegible], correlate [with] clinical findings." If the examiner believes that the report states otherwise or can interpret the portions the Board finds to be illegible, then the clinician must provide his or her own interpretations. b) If so, then provide an opinion as to whether it is at least as likely as not that the Veteran's drug abuse during his lifetime caused his HIV or AIDS. In providing the opinions requested herein, the clinician should accept as true the reports from the appellant and other lay witnesses that the Veteran abused drugs during his lifetime and administered at least some of the drugs intravenously. c) If the responses to a) and b) above are both in the affirmative, provide an opinion as to whether it is at least as likely as not that the Veteran's drug abuse was proximately due to, the result of, or aggravated by the his service-connected schizophrenia. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The question of aggravation must be addressed separately from the question of causation. In that regard, the examiner must note that an opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation and will necessitate a further opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). d) If the responses to a), b), and c) above are all in the affirmative, provide an opinion as to whether it is at least as likely as not that the Veteran's HIV or AIDS was a principal or contributory cause of his death. In providing this opinion, the clinician must discuss whether the HIV or AIDS resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death, which in this case are listed as respiratory failure and bronchopneumonia on the Veteran's death certificate. See 38 C.F.R. § 3.312 (2017). The examiner should indicate that the record was reviewed. A complete rationale should be provided for all opinions given. 2) After completion of the above, review the expanded record, including the evidence entered since the supplemental statement of the case, and determine whether service connection may be granted for the cause of the Veteran's death. If any benefit sought remains denied, furnish the appellant and her representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).