Citation Nr: 21014348 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 12-30 680A DATE: March 11, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death on a direct basis is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1968 until December 1969, including service in the Republic of Vietnam. The Veteran died in February 1992 and the appellant is his surviving spouse. This matter is on appeal from a July 2011 Department of Veterans Affairs (VA) regional office (RO) rating decision. This case was previously before the Board of Veterans’ Appeals (Board) in August 2019. In that decision, it denied the claim and remanded a separate 38 U.S.C. § 1151 claim for the death of the Veteran; the 38 U.S.C. § 1151 claim is not the subject of this Board decision. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (the Court). In a September 2020 Joint Partial Motion for Remand (JPMR), the Veteran’s attorney and VA General Counsel moved the Court to vacate the Board’s decision as it relates to the cause of the Veteran’ death (on a direct basis). The Court granted the JPMR and directed the Board to obtain a new VA examination. 1. Entitlement to service connection for the cause of the Veteran’s death on a direct basis is remanded. In its August 2019 decision, the Board relied on a May 2019 VA advisory opinion when it denied service connection for the cause of the Veteran’s death. The VA examiner opined that the Veteran had a diagnosis of schizophrenia at the time of his death and concluded that this condition was not related to service, because “thirteen years transpired between his discharge from military service and the onset of his schizophrenia.” The VA examiner additionally noted that the Veteran had “a mistaken diagnosis assigned to PTSD.” The Court held this opinion to be inadequate because [1] it does not explain the significance of the lapse of time between the Veteran’ discharge and his diagnosis and [2] fails to address a PTSD diagnosis at all. Pursuant to the Court’s September 2020 vacatur, the Board remands the claim for additional VA medical opinion that “addresses all of the questions from the March 30, 2017, request for specialist’s opinion, except to the extent that any of the questions relate to 38 U.S.C. § 1151.” The Board will republish these questions, in relevant part, in the remand portion of the decision. The matters are REMANDED for the following action: 1. Notify the appellant that VA is requesting an advisory medical opinion regarding entitlement to service connection for the cause of the Veteran’s death on a direct basis. 2. Then, pursuant to 38 U.S.C. § 5109, forward the Veteran’s claims file to a non-VA, independent medical expert to obtain an independent medical opinion from a psychiatrist, clinical psychologist, or similarly qualified mental health specialist to address the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death on a direct basis. The entire claims file, including the March 30, 2017, request for specialist’s opinion, a copy of this Remand, and the September 2020 Court Order, must be made available to and must be reviewed by the expert. Specifically, the expert must thoroughly and separately address the following: (a) Please list the diagnosis or diagnoses most appropriate to describe the Veteran’s mental health symptoms at the time of his death. Specifically and separately address the applicability of such diagnoses as schizophrenia, depression, PTSD, and any other as deemed to be relevant. (b) If PTSD is diagnosed retrospectively, please indicate if such diagnosis is based on fear of hostile military activity as set forth in 38 C.F.R. § 3.304(f). (c) For any and all diagnoses felt to be appropriate for the Veteran at the time of his death, to include schizophrenia and depression, please specifically and separately indicate whether they were at least as likely as not (50 percent probability or more) onset in service, within one year of service separation, or are otherwise related to service. (d) For any and all diagnoses felt to be appropriate for the Veteran at the time of his death, to include schizophrenia, depression, or PTSD, please specifically and separately indicate whether it is at least as likely as not (50 percent probability of more) any of these disabilities caused or contributed to the cause of the Veteran’s death, in this case an apparent suicide by hanging after elopement from the VA medical center mental health treatment facility. In answering these questions, please indicate the specific pieces of medical evidence which are of significance in reaching the diagnoses and conclusions offered. While the following is not an exhaustive list, they must be addressed by the examiner: [1] November 1974 medical history and disability report which indicate that the Veteran reported having his “first attack of nerves” in 1968 and continuing thereafter; [2] May 1975 hospital summary diagnosing him with passive-aggressive personality with conversion type symptoms; [3] February 1982 clinical record reporting that the Veteran has had these “blackouts intermittently have occurred over the past 10 years; [4] February 1982 physical examination that indicates that the Veteran started having blackouts in Vietnam, started “seeing things and hearing things” thereafter, and that he had nightmares and dreams about Vietnam, and that he worked as a cook and he had to carry out food to the troops and was under attack twice. A complete and thorough explanation of the answers is requested. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.