Citation Nr: 21027649 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 06-03 551A DATE: May 6, 2021 REMANDED The claim of entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran had active service from May 1959 to January 1961. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in June 2009. A transcript is of record. The appeal was remanded in June 2016 and August 2017. In the August 2017 remand, the Board determined that an opinion by a psychologist obtained in April 2017 was inadequate for the purpose of deciding the appellant's claim. The Board directed that an opinion be obtained from a psychiatrist or psychologist regarding whether the Veteran's alcohol abuse since service was caused or permanently aggravated by his service-connected major depressive disorder (MDD). The Board directed that, thereafter, the record should be forwarded to a physician who should provide a medical opinion. The Board specified that, if the psychologist determined that alcohol abuse was caused or permanently aggravated by the service-connected major depressive disorder, the physician should provide an opinion as to whether it was at least as likely as not that major depressive disorder with associated alcohol abuse was the immediate or underlying cause of death or was a contributing cause of death. The Board additionally specified that, if the psychologist determined that alcohol abuse was not caused or permanently aggravated by the service-connected major depressive disorder, the physician should provide an opinion as to whether it was at least as likely as not that major depressive disorder (without consideration of the Veteran's alcohol abuse) was the immediate or underlying cause of death or was a contributing cause of death. In January 2019, a VA psychologist indicated that she was unable to determine with 50 percent or greater certainty that the Veteran's alcohol abuse since service was caused or permanently aggravated by his major depressive disorder. However, following the Board's prior remand, the Court of Appeals for Veterans Claims (Court) decided Ward v. Wilkie, 31 Vet. App. 233 (2019). The Ward Court essentially determined that under 38 C.F.R. § 3.310 (b), aggravation does not require permanence. Therefore, under the standard articulated in Ward, the Board's prior remand utilized the incorrect standard when it asked the VA examiner to determine if the Veteran's alcohol abuse was permanently aggravated his MDD. As such, the case must again be remanded so that an opinion utilizing the proper standard can be obtained. Additionally, following the Board's prior remand, the AOJ requested an opinion from a VA physician. In April 2019, a physician reviewed the record and concluded that the Veteran's MDD, without consideration of his alcohol abuse, was less likely than not the immediate or underlying cause of death or was a contributing cause of death. He indicated that his opinion was based on review of the claims file, and recited various medical records. He did not discuss the medical principles underlying his conclusion; rather, he copied and pasted a variety of VA reports without discussing their relevance. Absent a discussion of the medical principles upon which the opinion is based, the Board is unable to make a determination in the appellant's claim. An additional medical opinion must be obtained. Furthermore, the Veteran's representative in an April 2021 brief argued that the Veteran's MDD led him to overeat, which caused obesity, which in turn led to his fatal myocardial infarction and/or fatal ischemic heart disease. Medical opinions addressing this theory of causation must also be obtained on remand. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a psychiatrist or psychologist. After reviewing the entire claims file, the examiner is asked to address the following: (a) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's alcohol abuse since service was caused or aggravated by the Veteran's service-connected major depressive disorder. (b) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected major depressive disorder caused or aggravated his obesity. (c) If the psychiatrist or psychologist determines that (1) the Veteran's alcohol abuse was caused or aggravated his service-connected major depressive disorder, or (2) that the Veteran's service-connected major depressive disorder caused or aggravated his obesity, the claims file should then be forwarded to a physician. (d) The physician must then provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected major depressive disorder with associated alcohol abuse, was the immediate or underlying cause of death or was a contributing cause of death. (e) The physician must then provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's obesity was the immediate or underlying cause of death or was a contributing cause of death, to include a contributing factor to his fatal myocardial infarction and/or ischemic heart disease. (f) If the psychiatrist or psychologist determines that the Veteran's alcohol use was not caused or aggravated his service-connected major depressive disorder, the claims file should then be forwarded to a physician. (g) The physician must then provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected major depressive disorder (without consideration of the Veteran's alcohol abuse), was the immediate or underlying cause of death or was a contributing cause of death. (Note: The examiner must address the Appellant's contention that the Veteran had nightmares that affected his health). A complete rationale for the opinions expressed must be provided. If the examiners cannot provide an opinion without resorting to speculation, a detailed rationale must be provided for why an opinion cannot be rendered, to include whether this reflects the limitations of knowledge in the medical community at large and not the knowledge of that particular examiner. 2. Then, readjudicate the appellant's claim. If the decision remains adverse to the appellant, she and her representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.