Citation Nr: 20038080 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 10-20 024 DATE: June 3, 2020 REMANDED Service connection for the cause of death of the Veteran is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1961 to September 1980. He died in March 1982 and the appellant is his surviving spouse This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2008 by a Department of Veterans Affairs (VA) Regional Office. The Board remanded the case in April 2014 and April 2016 for additional development and it now returns for further appellate review. In January 2019, the Board denied service connection for cause of death. In a September 2019 joint motion for remand (JMR), the parties agreed that the VA examination relied on by the Board was inadequate. Service connection for the cause of the Veteran’s death is remanded. The appellant contends that the Veteran death as a result of a self-inflicted gunshot wound to the head after service was the result of an acquired psychiatric disorder from service, to include injury to the skull/concussion sustained in motor vehicle accidents (MVAs). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service. Service connection for the cause of a veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran’s death. 38 U.S.C. §§ 1110, 1310; 38C.F.R. §§3.303, 3.312(a). For claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. However, the law does not preclude a Veteran from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 Fed. Cir. (2001) Per the September 2019 JMR, the September 2018 VA medical opinion had been inadequate as the examiner provided an insufficient rationale that relied exclusively on the lack of a formal diagnosis in service of an acquired psychiatric disorder and provided no discussion of whether a psychiatric diagnosis would have been appropriate based on all the evidence of record. The examiner’s report provided no explanation as to whether an acquired psychiatric disorder diagnosis should have been made during the Veteran’s lifetime. Additionally, the report indicated that the Veteran had sustained one in-service MVA, but he had been involved in two in-service MVAs (one in September 1966 and one in September 1972) and one post-service MVA (March 1981). The examiner’s opinion discussed general medical literature about the effects of head trauma but did not discuss what the specific effects of one, or all of these accidents combined specifically to the Veteran. The JMR found that the VA medical opinion should determine whether the Veteran’s death by suicide could, at least as likely as not, be attributed to an acquired psychiatric disorder that was related to service, even if not formally diagnosed during service or the Veteran’s lifetime, and whether the Veteran at least as likely as not suffered residuals of a traumatic brain injury (TBI) during his in-service MVAs that contributed to or caused his death by suicide. The Board notes that a September 26, 1972 service treatment record documented that the Veteran have a “beer can bid,” and in a written notation on that note, the appellant personally claimed that “as a registered nurse I know this was a MD order for alcoholics to keep them from going into DT’s.” In the April 2016 Board remand, the Board had remanded in part to determine whether there was any misconduct determination records for the September 1972 MVA. Although service personnel and service treatment records were subsequently obtained, the record is unclear whether there were any misconduct determinations. As such, the RO should clarify if such records exist and if so obtain them. An October 1972 Report of Medical Treatment, Hospitalization, and Allied Services note showed that the Veteran had been on liberty when he was involved in a truck accident on September 17, 1972 in the city of San Diego, California. A review of the September 17, 1972 service treatment records document that at the time of the MVA the Veteran had admitted that he had been drinking heavily. Given the question of whether the Veteran has TBI residuals from this second in-service accident and the clear indication of alcohol involvement, the RO should attempt to obtain a copy of the accident report regarding this incident to determine whether willful misconduct was involved. The matters are REMANDED for the following actions: 1. The RO should attempt to obtain the police accident report for the September 17, 1972 MVA in San Diego, California. Whether or not a copy of such a police accident report exists and can be obtained should be clearly noted in the claims file. 2. The RO should clarify whether there was a line of duty determination for the September 17, 1972 MVA and, if possible, obtain a copy. Whether or not a copy of such a determination exists and can be obtained should be clearly noted in the claims file. 3. The RO should perform any additional development deemed warranted to determine whether the September 17, 1972 MVA was the result of the Veteran’s willful misconduct. 4. After the above development has been accomplished, and the RO has made a willful misconduct determination for the September 1972 MVA, a new VA medical opinion should be obtained. As found in the JMR discussed in the remand narrative above (which also includes a discussion of why the JMR found the prior September 2018 VA medical opinion inadequate), the VA medical opinion provider should: (a) Explain whether an acquired psychiatric disorder diagnosis should have been made in the Veteran’s lifetime, even if one had not been formally diagnosed during service or lifetime. a. If an acquired psychiatric disorder diagnosis should have been made during his lifetime, the examiner should determine whether it at least as likely as not incurred in service (August 1961 to September 1980). Service treatment and personnel records, as well as, post-service private medical records should also be considered. Also consider the lay evidence of record, to include supporting statements and the appellant’s multiple lay statements, to include from May 2008, March 2009, and May 2018, as well as, her May 2020 affidavit. She has also argued that evidence of an in-service acquired psychiatric disorder was a September 26, 1972 service treatment record that documented that the Veteran was to have a “beer can bid.” In a written notation on a copy of that record, the appellant indicated that “as a registered nurse I know this was a MD order for alcoholics to keep them from going into DT’s.” Service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98. However, the law does not preclude a Veteran from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 Fed. Cir. (2001). (b) Determine whether an acquired psychiatric disorder that was found to have been incurred in service was a principal or contributory cause of his death by suicide. (c) Determine whether the Veteran had TBI residuals incurred in service, from his in-service MVAs, that were a principal or contributory cause of his death by suicide. Per the JMR, the examiner should also discuss the specific effects of one, or all of these accidents combined. The Veteran was involved in two MVAs in service – in September 1966 and September 1972. He separated from service in September 1980. He was also involved in a post-service MVA in March 1981. Per service treatment records, the September 1966 MVA has previously been determined to have been in the line of duty. However, IF the September 1972 MVA was found to be the result of the Veteran’s willful misconduct and not the line of duty (see remand narrative and directives above and paragraph below regarding willful misconduct), any TBI residuals found solely due to the 1972 MVA (if found) should NOT be considered in determining whether the Veteran had TBI residuals incurred in service that were a principal or contributory cause of his death by suicide. An injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the result of the person’s own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(n), 3.301(d). (d) Service treatment and personnel records, as well as, post-service private medical records (such as from the University of Texas Medical Branch in Galveston received in April 2008 and August 2009 regarding the post-service March 1981 MVA) should also be considered. A fully articulated medical rationale for EACH opinion expressed must be set forth in the medical report. The VA medical opinion provider should discuss the particulars of this Veteran’s medical history and relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.