Citation Nr: 21066754 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-62 544 DATE: November 2, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from May 1967 to January 1970, to include verified service in the Republic of Vietnam and Southeast Asia. His decorations for valor and merit included the Combat Action Ribbon and the Navy and Marine Corps Commendation Medal w/ Combat "V". The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A virtual Board hearing was held before the undersigned Veterans Law Judge in July 2021. A hearing transcript is of record. 1. Entitlement to service connection for the cause of the Veteran's death is remanded. The Veteran died in December 2015. A death certificate on record listed the immediate cause of death as cocaine toxicity. A Report of Investigation by the County Medical Examiner listed contributory causes of death as pneumonia, COPD, and hypertension. The appellant contends that the Veteran's death is related to active duty. At the July 2021 virtual Board hearing, she testified that his death from cocaine toxicity, occurred secondarily to his serviceconnected posttraumatic stress disorder (PTSD). Specifically, she noted that while she knew he had abused substances since the late 1970's, she only learned that he also abused cocaine two or three years before he died. Post -service VA treatment records indicate that in addition to outpatient treatment the Veteran was admitted to a residential substance abuse treatment program for 30 days in April 2012. A May 2012 discharge summary noted that the Veteran reported episodic use of alcohol and marijuana for at least 40 years prior to hospitalization as well as episodic use of cocaine. He denied any prolonged episodes of sobriety. The Veteran was afforded an Initial PTSD VA examination in November 2012. The examiner noted diagnoses of PTSD as well as polysubstance dependence in early full remission. The examiner determined that symptoms of the Veteran's PTSD were at least as likely as not the result of active duty. By contrast, the examiner could not assert the Veteran's diagnosed polysubstance dependence was as likely as not caused by or a result of PTSD or military service. The rationale for the examiner's negative nexus opinion was a finding that the Veteran had a strong genetic substance abuse history and as a result the probability that he would have suffered from substance abuse even in the absence of military service is far higher than average. The Board finds that the November 2012 VA examination is inadequate for adjudication in this matter for several reasons. See Barr v. Nicholson, 21 Vet. App. 303 (2007). First, the Board notes that the factual basis of the examiner's belief that the Veteran has a genetic predisposition to polysubstance abuse is not indicated. In addition to a rationale that lacks a factual basis and is based upon medical speculation, the examiner also failed to utilize the correct legal standard of review. Service connection may be recognized for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of the Veteran's PTSD disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, here the examiner did not offer an opinion as to whether the Veteran's polysubstance abuse disability was aggravated by his serviceconnected PTSD as required in secondary service connection cases. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that a finding of "not due to," "not caused by," or "not related to" a service-connected disability is insufficient to address the question of aggravation under § 3.310(b).) The Board finds that the record is insufficient to determine whether the Veteran's cause of death, cocaine toxicity may be associated with his service-connected PTSD as is alleged. The record does not contain a competent medical opinion addressing whether his PTSD caused or aggravated polysubstance abuse thus contributing to cause his death. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013) ("if it can be shown that the non-service-connected disability was aggravated to the degree that it contributed substantially or materially to the production of death, combined to cause death, or aided, or lent assistance to the production of death, such a finding would result in an unbroken chain between the service-connected disability and the condition that caused the veteran's death.) Accordingly, a remand to obtain a medical advisory opinion is necessary. In addition, the Board finds that the Veteran's treatment record is incomplete. Specifically, the Veteran's medical records from Methodist University Hospital and Stern Cardiovascular clinic have not been associated with the claims file. Also, an April 2012 VA treatment note suggests that the Veteran was approved for Social Security Disability benefits. Those records have not been obtained. The matters are REMANDED for the following action: 1. With any required assistance from the appellant, obtain any outstanding medical records for the Veteran to specifically include hospitalization treatment records from Methodist University Hospital and Stern Cardiovascular clinic. 2. Obtain the Veteran's disability records from the Social Security Administration and associated them with the claims file. 3. After the above development is completed, arrange for the Veteran's claims file and a copy of this remand to be forwarded to a suitably qualified mental health clinician for a medical opinion. The opinion should include responses to the following: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's service - connected PTSD caused the Veteran's polysubstance abuse? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's service - connected PTSD aggravated the Veteran's polysubstance abuse? Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.