Citation Nr: 21041375 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 06-06 220 DATE: July 9, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to Dependent's Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to May 1968. His service included a tour of duty in Vietnam and his military specialty was a light weapons infantryman. He was awarded the combat infantryman badge (COB). He died in October 1995. The appellant is his widow. This appeal originates from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board of Veterans' Appeals (Board) in December 2008, July 2011, and December 2016 at which times the case was remanded for additional development. In March 2019, the Board denied the claims. The appellant appealed that decision to the Court of Appeals for Veterans Claims (Court) and in an Order dated in March 2020, the Court granted a Joint Motion for Remand (JMR) vacating the Board's March 2019 decision and remanding the matter back to the Board. The matter is once again before the Board. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability, which was incurred in or aggravated by active duty service, either caused or contributed substantially or materially to death. In this regard, it can be either the immediate or underlying cause, or else be etiologically related. 38 U.S.C. § 1310; 38C.F.R. § 3.312. The Veteran's Certificate of death shows that he died of end stage liver disease due or the consequence of hepatitis C, cirrhosis, nonalcoholic. He was not service connected for any disabilities at the time of his death. The appellant initially asserted that the Veteran developed hepatitis C from his exposure to herbicides while serving in Vietnam. In vacating the Board's March 2019 decision, the JMR instructed the Board to fully comply with its prior remand directives in December 2016 with respect to requesting outstanding medical records from the Albany Medical Center. Subsequently, in June 2021, the Veteran's representative informed VA that he attempted to obtain the records from the Albany Medical Center and was informed that the records do not exist. He enclosed the negative reply from the Albany Medical Center showing that there was "no record of treatment for this patient". The Veteran's representative went on to waive any rights the appellant may have for VA to attempt to obtain these records which he said no longer exist, and he asked that the case be adjudicated without them. Notably, the claims file contains records from the Albany Medical Center in August 1995. Also in June 2021, the Veteran's representative asserted a new theory of service connection for the cause of the Veteran's death and enclosed additional supportive evidence. In this regard, he asserted that the Veteran's hepatitis C was due to in-service drug use which, in turn, was related to his PTSD. He explained that the Veteran abused drugs in service to mitigate his severe PTSD symptoms. His service treatment records indicate that he had a history of drug use prior to and during service. His representative pointed out that the Veteran's award of the CIB shows that he was in combat and the record supports a diagnosis of PTSD that meets the DSM V criteria. See 38 C.F.R. § 3.304(f). The Veteran's defining stressor as relayed by his psychotherapist who treated him from 1987 to 1995 involved most of his squad getting killed or wounded by friendly fire while he escaped due to being on guard duty during the incoming. While PTSD is not shown in the Veteran's service treatment records, there is post-service medical evidence that dates the Veteran's PTSD symptoms back to service. Risk factors for hepatitis C include intravenous drug use. However, VA disability compensation is not payable for disability due to a veteran's own willful misconduct or disability resulting from abuse of alcohol or drugs. 38 C.F.R. § 3.301(a), (b). The use of drugs to the point of addiction is considered willful misconduct. 38 C.F.R. § 3.301(c)(3). However, where the use of drugs or addiction to drugs results from a service-connected disability it will not be considered of misconduct origin. See 38 U.S.C. §§ 105(a), 1110; 38 C.F.R. § 3.301(c)(3); see also Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). In consideration of the foregoing, this case must be remanded for further development and consideration of this new theory of service connection, to include obtaining a new medical opinion. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This is to ensure fulfillment of due process requirements and to make a fully informed decision in this matter. The Board notes that a nexus medical opinion was obtained in December 2018 addressing the likelihood of a nexus between the Veteran's PTSD and the cause of his death, but the opinion does not include consideration of this new theory of service connection and thus is inadequate for rating purposes. The appellant's claim for DEA benefits is inextricably intertwined with her claim for the cause of the Veteran's death and is therefore deferred pending resolution of the latter claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician to determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran had PTSD related to combat stressors in service and, if so, whether it is at least as likely as not that the PTSD was a principal or contributory cause of the Veteran's death (contributed substantially and/or materially, or when combined with another disability). Consideration should be given to the theory of a substance use disorder secondary to the PTSD that in turn led to hepatitis C. The examiner should be advised that VA concedes that the Veteran engaged in combat in service due to his service in Vietnam and receipt of the CIB. His defining stressor as relayed by his psychotherapist who treated him from 1987 to 1995 involved most of his squad getting killed or wounded by friendly fire while he escaped due to being on guard duty during the incoming. The examiner should include complete rationale for the conclusions reached. 2. Then, after undertaking any additional development deemed appropriate, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.