Citation Nr: 21068023 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 13-29 578 DATE: November 8, 2021 REMANDED Entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of the Veteran's death is remanded. Entitlement to burial benefits is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1971 to August 1991. He died in October 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating and administrative decisions in March 2013. The appellant was married to the Veteran at the time of his death, but she has explained that she was not continuously cohabitating with him until the date of his death which is a requirement for surviving spouse status to be conveyed in some circumstances. 38 U.S.C. § 101(3); 38 C.F.R. § 3.50, 3.53. Here, the appellant reports that she and the Veteran separated in 2011 before his death. See, e.g., Hearing transcript, August 2014. It does not appear that the Agency of Original Jurisdiction (AOJ) has yet determined whether the appellant qualifies for surviving spouse status despite not living with the Veteran continuously from the date of their marriage to the date of the Veteran's death, and the Board reaches no conclusion as to this matter here. As mentioned above, the appellant appeared in an August 2014 hearing before a Veterans Law Judge (VLJ) to present testimony on the issues on appeal. The presiding VLJ from that hearing is no longer employed at the Board and is unable to participate in the decision in this case. The appellant was informed of this in a September 2018 letter and provided the opportunity to request a new hearing with a different VLJ. She declined to appear at another hearing and the Board has proceeded with the present appeal. This appeal was last before the Board in August 2021 at which time additional evidentiary development was requested to comply with due process requirements. The evidentiary record has not yet been adequately developed and an additional remand is necessary. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 1. Entitlement to DIC benefits based on service connection for the cause of the Veteran's death is remanded. The Board cannot make a fully-informed decision on the issue of service connection for the cause of the Veteran's death because no examiner has considered and addressed the medical treatise evidence submitted by the appellant in support of her contention that the Veteran's diagnosed alcohol dependence "may have been a symptom of other service-connected mental health disabilities and/or an attempt to self-medicate to manage such symptoms...." Attorney's brief, August 2021. An addendum medical opinion is necessary. 2. Entitlement to burial benefits is remanded. Finally, because a decision on the remanded issue of service connection for the cause of the Veteran's death directly impacts a decision on the issue of entitlement to burial benefits where eligibility is in part due to whether a veteran died as a result of a service-connected disability, the issues are inextricably intertwined. A remand of the claim for burial benefits is also required. The matters are REMANDED for the following action: 1. Determine whether the appellant meets criteria for recognition as the surviving spouse of the Veteran under 38 U.S.C. § 101(3) and 38 C.F.R. § 3.53 where she admits that she did not continuously cohabitate with the Veteran until the time of his death, but had separated earlier that year. 2. Obtain an addendum opinion from a provider other than the provider offering the September 2021 opinion, preferably a psychiatrist or psychologist if available. The examiner should thoroughly review the claims file, specifically to include the treatise evidence (15 professional articles) submitted by the appellant in August 2021, and comment on any articles as appropriate if they should relate to the facts presented by the Veteran's case. The examiner is then asked to respond to each of the following questions: a. Based on the evidence as a whole, including the service treatment records, lay statements provided by the Veteran's friends and family, the aforementioned treatise evidence, and allegations that his documented alcohol dependence was the result of a mental health disability, is it at least as likely as not that the Veteran had an identifiable mental health disorder during his active service? If so, please describe the diagnosable mental disorder(s). b. Is it at least as likely as not that the Veteran had a diagnosable mental health disorder at the time of his death? If so, please describe the diagnosable mental disorder(s). (Continued on the next page) c. For any diagnosable mental disorder, is it at least as likely as not that the disorder began during active service, or was caused by or otherwise related to the Veteran's active service? Why or why not? To be clear, it is undisputable that the Veteran died from a self-inflicted gunshot wound. However, it is necessary for the Board to consider whether there is any reasonable basis to conclude that a service-connected mental health condition had a material influence in the Veteran's death by suicide. The appellant asserts that the Veteran's history of alcohol dependence, including hospitalization by VA roughly three years after his separation from service for alcohol abuse treatment, is indicative of mental health problems due to his active service, but the governing law prohibits compensation for disability resulting from the abuse of alcohol unless that alcohol abuse was secondary to or caused by a primary service-connected disorder (in this case an alleged mental health disorder). The Board must rely on a competent mental health practitioner to reach these posthumous determinations and requests answers to the questions above on this basis. The Board recognizes that the complex and retrospective nature of the medical questions involved will require significant work on the part of the examiner. Full and thoroughly explained answers to each of the questions asked will prevent delays in adjudication and are very much appreciated. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.