Citation Nr: 21030441 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 09-46 273 DATE: May 18, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1976 to December 1985. He died in May 2008. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision. In January 2012, the appellant testified at a hearing before the undersigned. The Board remanded this matter for additional development in May 2012. In a September 2016 decision, the Board denied both issues comprising it. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court) which, in September 2017 vacated and remanded the matter for action consistent with a Joint Motion for Partial Remand (Joint Motion). In a March 2018 decision, the Board again denied both issues and the appellant appealed to the Court which, in an October 2019 Memorandum Decision once again vacated the Board decision and remanded the matter back to the Board for readjudication. In August 2020, the Board remanded the issues for a VA examination and opinion as to the cause of the Veteran's death. The issues have been certified to the Board without adequately addressing the remand instructions as directed by the August 2020 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). 1. Entitlement to service connection for the cause of the Veteran's death is remanded. While the Veteran's death certificate ruled the incident an accident, the appellant contends the Veteran committed suicide as a result of a psychiatric disorder that began in service. The Veteran's service treatment records (STRs) reveal several instances of psychological problems. A June 1983 STR notes that the Veteran "made a swing in frustration" and his hand went through a window resulting in lacerations to his arm. A December 1984 STR shows that the Veteran was referred to sick bay for possible alcohol abuse. The Veteran was diagnosed with alcohol abuse and physical dependence. An August 1985 STR notes that the Veteran was treated after putting his arm through a window after a violent outburst. While the Veteran was admitted for treatment, he was observed hitting a candy machine with his head and forearm, knocking a clock off the wall and hitting a child in the head. He was placed in leather restraints. The Veteran was diagnosed with intermittent explosive disorder and a history of alcohol abuse. The August 1985 STR notes a recommendation that the Veteran be admitted and evaluated by psychiatry. A subsequent August 1985 psychiatry note shows that the Veteran was referred to a stress coping skills group. Another August 1985 STR noted a history of headaches and being followed by psychiatry. Post-service treatment records show that the Veteran went through a substance abuse treatment program (SATP) between 1999 and 2000. Notes from SATP show that the Veteran was treated for chemical dependency. A May 2003 VA Homeless Veteran Outreach Assessment shows the Veteran denied any major psychiatric problems but admitted to situational depression and tension. Lay statements and testimony from the appellant, as well as statements from M.W., a friend of the Veteran's who witnessed the incident, and the Veteran's brother, who talked to him shortly before it, lend some support to him committing suicide. A 2010 statement from M.W., reflects that he and the Veteran were walking and talking prior to the Veteran "running out in front of the oncoming car" and that he believed the Veteran ran in front of the car to commit suicide. The Veteran's brother reported that about 30 minutes prior to his death he and the Veteran spoke on the phone and during the call the Veteran told him that "he did not think he would be able to take this life anymore," and begged his brother to take care of his wife and daughter. The appellant has asserted that following an incident in service in which the Veteran's ship was held hostage in 1979/1980 the Veteran allegedly held a gun to his head. The appellant also asserts that the Veteran made two additional in-service suicide attempts after that. The STRs, service personnel records, and the appellant convey that the Veteran experienced psychological problems in his last few years of service. Also, the appellant's statements and testimony, and statements from family and friends reflect that the Veteran experience the same problems after service. Given the complexities of the case, the issue was remanded by the Board in August 2020 to obtain an opinion, based on the existing facts and information, on whether the Veteran's death was an accident or a suicide. If the examiner concluded the death was a suicide, the examiner was asked to opine whether it is at least as likely as not due to a psychiatric disorder which began during his service. In a December 2020 VA opinion, the examiner stated they could not give a medical opinion without speculation. The rationale provided was that the death certificate would need to be changed and in order to change it additional information is necessary. The examiner stated that the claim of suicide can only be certified by the county coroner, including suicidal death. The examiner went on to state that in order to show the cause of death in the death certificate was wrong, the appellant has to contact the police department to get complete records that would encompass all other people involved. Lastly, the examiner stated the records should provide much better evidence for the cause of death. Unfortunately, the Board finds the response from the December 2020 VA physician to be inadequate and not in compliance with the directives of the August 2020 remand. The physician stated that the Veteran's death could only be certified by the county coroner, and in order to change the manner of death on the death certificate additional records must be sought by the appellant. However, the examiner was not asked to change the death certificate, the examiner was asked for an opinion on whether a different cause of death may be involved based on the facts before him as discussed above. As the December 2020 physician statement does not address the question at hand, a remand is necessary so that a VA opinion can be obtained that complies with the remand directives. 2. Dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is remanded. DIC benefits under 38U.S.C. § 1318 is inextricably intertwined with service connection for the cause of the Veteran's death, and thus also is remanded. Harris v. Derwinski, 1Vet. App.180, 183 (1991). The matters are REMANDED for the following action: 1. Send the claims file back to the examiner who provided the December 2020 opinion, if they are unavailable send it to a medical professional with the appropriate expertise to thoroughly review the claims file and opine as to the following: a. Based on the facts as provided above, was the Veteran's death an accident or suicide? The physician should address whether a different cause of death may be involved based on the facts as discussed above regarding the Veteran's mental health difficulties during and after service. b. If the examiner determines the Veteran's death was a suicide based on the facts given, is it at least as likely as not (a 50 percent or greater probability) due to a psychiatric disorder which began during his service. A detailed rationale is required to support each opinion. This means that relevant medical principles and/or medical literature should be discussed as it relates to facts specific to the Veteran, as shown by the medical and lay (non-medical) evidence. If an opinion cannot be provided without resorting to speculation, a complete explanation for why this is so is required. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.