BVA9502336 DOCKET NO. 91-38 128 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependency and indemnity compensation benefits under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from May 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 1989 and December 1990 rating decisions. The appellant was present for a hearing before a hearing officer at the RO in January 1991. The Board remanded the appeal to the RO for further development in June 1992. REMAND The veteran died at the age of 64, in November 1989. The Certificate of Death listed respiratory arrest due to or as a consequence of metastatic cancer to the lung of unknown primary site as the cause of death. Heavy smoking and a history of alcohol excess were listed as significant conditions which contributed to death but did not result in the underlying cause. At the time of the veteran's death service connection had been established for the residuals of shell fragment wound of the left femur, evaluated as 40 percent disabling; the residuals of a back injury, evaluated as 20 percent disabling; the residuals of shell fragment wound of the right leg, evaluated as 10 percent disabling; the residuals of shell fragment wound of the left tibia, evaluated as 10 percent disabling; and the residuals of shell fragment wound of the right chest wall, evaluated as noncompensably disabling. The combined disability rating was 70 percent. A total rating for compensation purposes based on individual unemployability had been in effect since December 4, 1979. The Board's June 1992 remand stated that the RO should select a VA physician to provide an "opinion as to whether the service- connected disabilities, caused or materially contributed to cause the veteran's death." It was also indicated that a full explanation of the rationale for the physician's opinion was desirable. The obtained statement from the Chief of Staff, VA Medical Center, Salem, Virginia, dated June 24, 1994, did not provide the medical information required to allow the Board to properly adjudicate the appellant's claim. While the physician's letter noted, in some detail, the difficulty of the task assigned, the physician failed to cite medical evidence substantiating a proposed theory that the veteran's abuse of alcohol and tobacco were significant factors in producing his demise. In view of the above, the Board finds that clarification of the physician's opinion and the securing of any related medical evidence is desirable prior to appellate review. Accordingly, this case is REMANDED to the RO for the following: 1. The RO should take appropriate steps to contact the appellant in order to obtain information concerning the veteran's alcohol and/or nicotine problems, including the approximate dates when the veteran began drinking alcohol and began smoking tobacco, the extent of his consumption over the years and the nature and extent of any medical treatment received for either. The RO should obtain copies of any available records referable to treatment of alcohol and tobacco abuse not already present in the claims files. 2. After the development requested above has been completed, the RO should request that the physician who wrote the aforementioned June 24, 1994, letter review the veteran's claims files and provide the required clarification. The physician's report should provide answers to the following: a) His opinion as to the cause of the veteran's death, i.e., the type of carcinoma and the likely extent of involvement. b) What was the medical probability that chronic alcohol or nicotine abuse caused the fatal carcinoma? c) What was the medical probability that chronic alcohol or nicotine abuse contributed substantially in producing or materially accelerated the veteran's death? 3. After the development requested above has been completed, the RO should refer the veteran's claims file, including a copy of this REMAND, to a VA psychiatric examiner for review. The examiner should offer an opinion as to the medical probability that the veteran was suffering from primary alcoholism or an acquired psychiatric disorder which caused secondary alcohol abuse of a chronic nature. If an acquired psychiatric disorder is identified, then the examiner should state an opinion as to the likelihood that it was due to service. 4. After the development requested above has been completed, the RO should again review the record and adjudicate the issues on appeal, and any related issues, such as entitlement to service connection (on a secondary basis) to service connection for alcohol or nicotine use disorders. If any benefit remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).