Citation Nr: 21026729 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 10-45 667 DATE: May 3, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran had active service from August 1988 to November 1988, and May 2003 to August 2005, including a tour in Southwest Asia during the Persian Gulf War. The Veteran died in October 2005. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant requested a hearing before the Board. The requested hearing was conducted in January 2013 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In October 2014, the Board remanded this claim for additional development. In October 2017, the Board requested an expert medical opinion from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901. A VHA opinion was received in November 2017. In a June 2018 decision, the Board denied this claim. The Appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 Memorandum Decision, the Court vacated the Board's decision and remanded the case for compliance with the terms of the Court's decision. In August 2020, the Board remanded this claim for additional development. Entitlement to service connection for the cause of the Veteran's death. As directed in the August 2020 Board remand, medical opinions were obtained regarding whether the Veteran had a pre-existing psychiatric disorder that was aggravated during service. Given the complex medical nature of the medical question at issue and controversy, the Board has determined that in accordance with 38 U.S.C. § 5109, a remand is required for VA to request an advisory medical opinion from an independent medical expert to clarify the medical opinions obtained in September 2020, November 2020 and December 2020. As noted in the August 2020 remand, the Board notes once again that the record does not contain any positive nexus opinions. The Board is not free to ignore medical opinions and substitute its own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991). While this case is in remand status, the Appellant's representative is free to obtain a medical opinion to substantiate the claim. The matters are REMANDED for the following action: 1. Send a letter to the Appellant's attorney representative advising she may obtain and submit a medical opinion with supporting rationale based on a review of the file in support of the Appellant's claim. 2. The AMO should follow its established procedures for requesting an advisory opinion furnished by a medical school, university, clinic or medical institution (i.e., an independent medical expert who is not an employee of the Department). *Pursuant to 38 U.S.C. § 5109, the file should be sent to a psychiatrist to offer an independent medical opinion. The entire claims file, including a copy of this remand, must be reviewed by the psychiatrist. After a review of the claims file, the psychiatrist should answer the following: a) In light of the medical opinions of record indicating the Veteran's stimulant use disorder and depression clearly and unmistakably pre-existed service: is there clear and unmistakable (undebatable) evidence that the pre-existing psychiatric disorder DID NOT undergo a permanent increase in severity during service, to include as a result of his injury and/or early return from deployment ahead of his unit. b) If there was an increase in the severity of the Veteran's psychiatric disorder during service, please offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. c) In opining, the examiner is asked to specifically consider and discuss the Appellant's testimony regarding the Veteran's change in behavior and demeanor following his in-service injury in Iraq and that the Veteran became depressed following his in-service injury because he could no longer participate in physical fitness, which he always enjoyed and used as an outlet, explaining: "his commanding officer...stat[ed] he was a stellar soldier. He was a great leader. He had great physical capabilities. He received numerous outstanding awards. He graduated top of his class in bootcamp. He was very smart. But then, there was just this downward spiral when he came back from - you know, brought back from Iraq in January 2005." "He also expressed to me that he was depressed, because he liked working out. He liked being fit, and of course, due to the injury, he could no longer have that as an outlet." All opinions expressed should be accompanied by supporting rationale. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.