Citation Nr: 21016215 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-00 831 DATE: March 22, 2021 REMANDED Entitlement to service connection for the Veteran’s cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to August 1969. He died in September 1981. The appellant is his surviving spouse. In June 2018, the appellant appeared at a videoconference hearing before the undersigned Veterans Law Judge, where she provided testimony regarding her appeal. A transcript is in the record. The Board denied the appellant’s appeal in September 2018. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 Order, the Court, via a Memorandum Decision, vacated the September 2018 decision and remanded the appeal for action consistent with that decision. It has now returned to the Board for appellate review.   Service connection for the Veteran’s cause of death is remanded. The appellant seeks entitlement to dependency and indemnity compensation (DIC) benefits for the cause of the Veteran’s death. Specifically, the appellant contends that the Veteran’s death was due to alcohol use disorder stemming from untreated and undiagnosed post-traumatic stress disorder (PTSD), which was a result of active service. As noted above, this matter was remanded by the Court in May 2020 for action consistent with the terms of the Court’s decision. 05/08/2020 CAVC Decision. The parties agreed that remand was warranted because the Board provided an inadequate statement of reasons or bases for denying the appellant’s claim. Id. at 71. Specifically, the Board erred by finding that the Veteran’s death certificate did not list alcohol intoxication as related to the cause of death, when the death certificate indicates that alcohol intoxication contributed to the Veteran’s death, “but was not the direct cause of the Veteran’s closed head injury.” Id. Second, the Board provided an inadequate statement of reasons and bases for its conclusion that no medical examination was warranted under 38 U.S.C. § 5103A(a) to determine whether the Veteran had PTSD and whether alcohol abuse was a symptoms of this disorder. See 38 U.S.C. § 7104(d)(1). Here, the Board observes that the record contains lay statements from the appellant and the Veteran’s family and friends regarding the symptoms of alcohol use disorder and PTSD that he exhibited upon returning from Vietnam. See 04/25/2014 Buddy / Lay Statements; see also 04/25/2014 VA 21-4138, Statement in Support of Claim. In June 2018, the appellant testified before the undersigned Veterans Law Judge and detailed the Veteran’s PTSD symptoms, behavior, and alcohol use after he returned from combat service in Vietnam. 06/06/2018 Hearing Testimony. Furthermore, in an April 2014 medical opinion, Dr. D.B.M., the appellant’s treating physician, opined that the Veteran may have had PTSD based on the appellant’s description of his symptoms. See 04/25/2014 Medical Treatment Record – Non-Government Facility.   While the Veteran’s service treatment records (STRs) are silent for any complaints of PTSD or another acquired psychiatric disorder, the record reflects that he was awarded the Combat Infantryman Badge (CIB) during military service in the Republic of Vietnam. 06/03/2015 DD 214. Therefore, the Board finds that an in-service PTSD stressor is established based on the Veteran’s participation in combat. 38 C.F.R. § 3.304(f). The two remaining elements that must be met to support a grant of service connection are a valid diagnosis of PTSD and an etiological nexus between PTSD and the in-service stressor. See id. The Federal Circuit has held that section 38 U.S.C. § 5103A(a), rather than § 5103(d), applies to dependency and indemnity compensation (DIC) claims. Section 5103A(a) directs that VA need obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). A medical examination, however, is not warranted when “no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2); see Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008). Here, the Board cannot conclude that no reasonable possibility exists that obtaining a medical opinion in this case would not aid the appellant in substantiating her claim for DIC benefits for the cause of the Veteran’s death. Accordingly, the Board will not proceed with final adjudication of this claim until the agency of original jurisdiction (AOJ) obtains a competent medical opinion with supporting rationale that adequately addresses the cause of the Veteran’s death and whether his cause of death resulted from alcohol use disorder stemming from untreated and undiagnosed PTSD or some other acquired psychiatric disorder related to the conceded in-service stressor. As such, the Board finds that a remand is necessary to obtain competent medical evidence to assist with adjudication of this appeal. The matter is REMANDED for the following actions: Obtain an opinion from an appropriate clinician regarding whether the Veteran’s cause of death is related to service. The clinician is to note that the Veteran’s immediate cause of death was closed head injury due to a motor vehicle accident, with alcohol intoxication as a significant condition contributing to death but unrelated to the cause of death. See 09/[REDACTED]/1981 Death Certificate. The clinician is to review the entire claims file, including a copy of this remand and the May 2020 Court Decision. The examiner is to address: (a) whether it is at least as likely as not (50 percent or greater probability) that at the time of his death, the Veteran had any undiagnosed psychiatric disability that was caused by service or any incident of service, to include the conceded in-service stressor due to combat in the Republic of Vietnam; (b) whether it is at least as likely as not (50 percent or greater probability) that any undiagnosed psychiatric disorder, to include alcohol use disorder and/or PTSD, was either the principal or a contributory cause of the Veteran’s death. To assist the clinician, the Board notes that the applicable regulation defines “principal cause of death” and “contributory cause of death. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. The examiner is requested to specifically address the appellant’s contentions that active service in Vietnam caused the Veteran to develop PTSD with symptoms of alcohol abuse disorder, which led him to drive while intoxicated and ultimately resulted in the motor vehicle accident that caused his death. **In rendering the opinion, the examiner must specifically address and consider: (a) the Appellant’s June 2018 hearing testimony, (b) the April 2014 private medical opinion, (c) the lay statements submitted by the Veteran’s wife, brother, brother-in-law, daughter, and friend, J.P; (d) the Veteran’s September 1981 death certificate.** (Continued on the next page)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.