Citation Nr: 0811361 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-06 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Ames, Associate Counsel INTRODUCTION The veteran served on active duty from September 1969 to March 1972. He died in March 2001, and the appellant is his surviving spouse. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado (RO). FINDING OF FACT The medical evidence of record shows that a service-connected disability contributed substantially or materially to cause the veteran's death. CONCLUSION OF LAW A disability incurred in or aggravated by service caused or contributed substantially or materially to cause the veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Without deciding whether the notice and development requirements of the VCAA have been satisfied in the present case, this law does not preclude the Board from adjudicating the issue involving the appellant's claim for service connection for the cause of the veteran's death as the Board is taking action favorable to the appellant by granting service connection for the claim. As such, this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pertinent regulations provide for a grant of secondary service connection where a disability is determined to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Further, in Allen v. Brown, 7 Vet. App. 439 (1994) (en banc), the United States Court of Appeals for Veterans Claims (Court) held that where service connection is sought on a secondary basis, service connection could be granted for a disability which was not only proximately due to or the result of a service-connected condition, but could also be granted where a service- connected disability had aggravated a nonservice-connected disability, with compensation being paid for the amount of disability which exceeded "the degree of disability existing prior to the aggravation." VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312 (2007). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(b), (c). The veteran died in March 2001 at the age of 49. The certificate of death reported the immediate causes of death as multisystem organ failure and complications of meningitis. The certificate of death reported the contributing causes of death as cardiomyopathy, hepatitis B and C, liver failure, and renal failure. The appellant claims that the cause of the veteran's death was related to his active military service. Specifically, she claims that the veteran's service-connected post-traumatic stress disorder (PTSD) caused his alcohol and substance abuse, which in turn led to a suppressed immune system and some of the contributing causes of death. Service connection for PTSD was granted by an August 1998 rating decision. In November 1997 the veteran was provided with a VA psychiatric examination specifically "to form an opinion whether the veteran's substance abuse is secondary to his [PTSD]." After a complete review of the claims file, the veteran's social and medical history, and a thorough mental status examination, the VA psychiatrist stated that [t]his veteran's drug abuse and alcoholism antedates his entry into the service. It may have been aggravated by his service in Vietnam because of the difficult conditions under which he served and the availability of the substances. . . . Giving the veteran the benefit of doubt, I would say that his alcohol and drug use is at least partially related to the [PTSD]. It is also related, I think, to the veteran's personality disorder. It is not possible for this examiner to separate the two. After the veteran's death a September 2002 VA medical opinion was requested to address the exact same issue as the November 1997 VA medical examination. The examiner reported that the claims file had been reviewed and stated [i]t is the opinion of this examiner that the substance abuse disorders are NOT secondary to [PTSD] and did not, in any manner, contribute to it. . . . Further, it is the conviction of this examiner that the substance abuse disorders are part and parcel of his Personality Disorder. Accordingly, there are two medical opinions that address whether the veteran's PTSD is related to his substance abuse disorders. The November 1997 VA psychiatric examination report concluded that the substance abuse disorders were related to PTSD. The September 2002 VA medical opinion concluded that the substance abuse disorders were not related to PTSD. However, the November 1997 VA psychiatric examination report reached its conclusion after a mental status examination of the veteran. The November 1997 report also provided reasons and bases for its opinion. In contrast, the September 2002 report was provided without a mental status examination and did not provide any basis for its conclusions. Accordingly, the November 1997 VA psychiatric examination report holds more probative weight. As such, the preponderance of the medical evidence of record shows that the veteran's substance abuse disorders were related to his service-connected PTSD. 38 U.S.C.A. § 1110 states that "no compensation shall be paid if the disability is the result of the person's own willful misconduct or abuse of alcohol or drugs." See also 38 C.F.R. §§ 3.1(n), 3.301 (2007). However, service connection is not precluded for an alcohol or drug abuse disability secondary to a service-connected disability or use of an alcohol or drug abuse disability as evidence of the increased severity of a service-connected disability. Allen v. Principi, 237 F. 3d 1368, 1381 (Fed. Cir. 2001). In this case, the medical evidence of record shows that the veteran's alcohol and drug abuse disabilities were secondary to a service-connected disability. As such, service-connection is also warranted for any disabilities that are secondary to the veteran's alcohol and drug abuse disabilities. Multiple private medical records dated in February and March 2001 gave diagnoses of cirrhosis and hepatitis B and C. A February 19, 2001 private medical report stated that the veteran had a medical history of cirrhosis secondary to alcohol and hepatitis C. A second February 19, 2001 private medical report listed multiple assessments. The first was meningitis, "most likely . . . penumococcal meningitis but may also be suffering from sero-meningitis given his immunocompromise and alcoholism." The fourth was cirrhosis/end-stage liver disease, "[g]iven his level of liver disease and ethanol abuse, his prognosis from this serious infection . . . is rather poor." A third private medical report dated that same day gave an assessment of "alcoholic cirrhosis." A February 24, 2001 private medical report included a review of the veteran's cardiovascular functions. It stated that the veteran had a history of alcohol abuse and was "most likely suffering from alcoholic cardiomyopathy." A review of the veteran's gastrointestinal system stated that the veteran had "a long history of alcohol abuse and he has been diagnosed with cirrhosis of the liver." A February 27, 2001 private medical report included a review of the veteran's liver functions. It stated that the veteran had a long history of cirrhosis and hepatitis C. The report stated that a hepatic tumor was seen on a computed axial tomography test and the tumor could be a hepatoma due to the history of hepatitis C. The medical evidence of record from February and March 2001 shows that the veteran's cirrhosis of the liver was related to his alcohol abuse. It also shows that the veteran's cardiomyopathy was "most likely" related to alcohol abuse. In this regard, the Board notes that both cardiomyopathy and liver failure were listed as contributing causes of death on the veteran's certificate of death. Therefore, the preponderance of the medical evidence of record shows that the veteran's PTSD caused or aggravated his substance abuse, which in turn caused or aggravated his liver disorder and cardiomyopathy, which in turn contributed to cause his death. As such, applying the doctrine of reasonable doubt, the Board finds that a service-connected disability contributed substantially or materially to cause the veteran's death. Accordingly, service connection for the cause of the veteran's death is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the veteran's death is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs