Citation Nr: 21063511
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 17-54 972
DATE: October 14, 2021

REMANDED

Entitlement to service connection for cause of death is remanded.

REASONS FOR REMAND

The Veteran had active service from October 1966 to October 1968. He died in August 2014. The appellant claims as the surviving spouse.  Service connection had been established for PTSD with Major Depression, prostate cancer and erectile dysfunction.

1. Entitlement to service connection for cause of death is remanded.

The Veteran's August 2014 death certificate lists that the immediate cause of death of the Veteran was "pending toxicology." In a November 2014 addendum, the immediate cause of death is listed as oxycodone toxicity. Cocaine use is listed as

 

an "other significant condition contributing to death." Further notes indicate that the Veteran took excessive medication. The Veteran's death certificate does not list any of the Veteran's service-connected disorders as a cause of death. 

The appellant has noted that the Veteran, at the time of death, was service connected for posttraumatic stress disorder (PTSD) and prostate cancer with ED.

Based on review of the file, the Board is concerned that the Veteran may have used drugs is related to a service-connected disorder.

A medical opinion was not obtained in this case. In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the Federal Circuit held that the duty to obtain a medical opinion under 38 U.S.C. § 5103(d) is inapplicable to dependency and indemnity compensation (DIC) claims, because the provision specifically states it is only for "disability compensation." However, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the court clarified DeLaRosa, indicating that while § 5103(d) is inapplicable to DIC claims, the provision of § 5103A(a)(1) still requires VA to make "reasonable efforts" to provide assistance, to include obtaining a medical opinion. VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A (a)(2).

The Board believes "reasonable efforts" in this circumstance include obtaining a medical opinion to determine the etiology of the Veteran's drug use and whether it was related to the Veteran's service-connected disorders, to include PTSD and prostate cancer.

The matters are REMANDED for the following action:

1. Send the Veteran's file to an examiner of appropriate expertise. Upon review of the file, the examiner must answer whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the use of drugs was related to service-connected disability.  In addition, was oxycodone prescribed for a service-connected disability?

A complete rationale for any opinion expressed should be provided in a report.   

 

 

H.N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonah Nelson, Associate Counsel

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.