Citation Nr: 21005317 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-45 708 DATE: February 1, 2021 REMANDED Entitlement to service connection for cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2009 to June 2011. He died in June 2011, and the appellant is his surviving spouse. In September 2019, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims folder. In September 2019, the Board of Veterans’ Appeals (Board) remanded this case for additional development. Entitlement to service connection for the cause of the Veteran’s death is remanded. The Veteran’s cause of death was accidental mixed drug intoxication. See Autopsy Report. At the time of the Veteran’s death, he was not service-connected for any disability, as he was still serving on active duty. However, at the time of his death, the Veteran was receiving inpatient psychiatric care at a mental health facility (UBH) after he attempted to commit suicide by ingesting a large amount of cocaine. The appellant argues the Veteran should be service-connected for a claimed psychiatric disability, to include posttraumatic stress disorder (PTSD) caused by or incurred during active duty service, and that this claimed psychiatric disability contributed to the Veteran’s death. See November 2016 Appellant’s Brief and May 2012 Notice of Disagreement. In September 2019, the Board determined that a prior June 2016 VA medical opinion was incomplete and remanded the case for an additional medical opinion to address whether the Veteran had a psychiatric disability at the time of his death, and whether any psychiatric disability was caused by or incurred during his active duty service. Additionally, the remand directive instructed the examiner to opine whether it was at least as likely as not that any psychiatric disability had either caused or contributed materially to the Veteran’s death. In October 2020, a VA examiner conducted a thorough review of the Veteran’s claims file, including his extensive treatment records and other relevant documents, and concluded that there was no evidence in the Veteran’s medical record to support a finding that the DSM-5 diagnosis of PTSD was an accurate description for the clinical signs and symptoms documented at the time of his death. Instead, the examiner diagnosed major depressive disorder, stimulant use disorder, and cannabis use disorder. The examiner then opined that it was at least as likely as not that these psychiatric diagnoses were at least as likely as not incurred during the Veteran’s active duty military service, but also opined that it was less likely than not that the Veteran’s mental condition had caused or contributed substantially or materially to his death. In support of the second portion of his medical opinion, the examiner noted that based upon the drug-related charges incurred by the Veteran while on active duty, it appeared that his pre-military drug-related behaviors continued during his military service and contributed to his inpatient psychiatric treatment. The examiner also stated that, “Presumably, over the extended course of inpatient treatment, [the Veteran] was not using illicit drugs,” and noted that towards the end of his treatment, he was described as “doing fairly well on the unit” and “[a]ppears to be doing much better” on his medication. Additionally, the examiner noted that on the day before his death, treatment notes documented that overall, the Veteran “continue[d] to be very effectively integrated” with his mood described as “pretty good.” See October 2020 VA Medical Opinion. Despite the thorough rationale provided, the Board finds this opinion to be insufficient. In particular, the examiner’s opinion appears to be based, in part, on a presumption that the Veteran did not use illicit drugs while receiving inpatient psychiatric care. However, this is contradicted by the record. Following the Veteran’s death, a criminal investigation was conducted into the circumstances surrounding the death, during which multiple service members and patients at UBH were interviewed. In one such interview, the investigator asked another UBH patient whether the Veteran had used drugs while at UBH. In response, the individual stated that the Veteran had reported using both methamphetamine and bath salts while at UBH. See September 2014 Medical Treatment Record. As the October 2020 VA examiner’s opinion does not account for the Veteran’s continued drug use during his stay at UBH, the Board finds that remand for an addendum medical opinion is warranted. Furthermore, in light of the examiner’s indication that the Veteran’s substance use disorders preexisted his military service, the Board finds that a clarifying opinion is also necessary to address whether his in-service psychiatric disorders/symptoms aggravated his preexisting substance use disorders. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the October 2020 VA examiner, if available, or another appropriate clinician, if not. The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent probability or greater) that the Veteran’s substance use disorders were aggravated by his major depressive disorder? 2. If, and only if, the Veteran’s substance use disorders are found to be etiologically related to his major depressive disorder, is it at least as likely as not (i.e. 50 percent probability or greater), that the substance use disorders caused or materially contributed to the cause of the Veteran’s death (accidental mixed drug intoxication)? A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.