Citation Nr: 1339753 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-08 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. He died in January 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in San Diego, California. At that time, the claim was within the jurisdiction of the RO in Detroit, Michigan, and had been brokered out to the San Diego RO due to expedite processing. This appeal also arises from a June 2008 rating decision of the Detroit RO. During the pendency of this appeal, the appellant has relocated, and her appeal is now within the jurisdiction of the RO in New York, New York. In August 2011, the appellant testified before a Veterans Law Judge seated at the RO. A transcript of this hearing has been added to the claims file. That Veterans Law Judge is no longer with the Board. In a November 2012 letter, the appellant was offered another hearing before a current Veterans Law Judge, but she did not respond, and is thus presumed not to desire another Board hearing. This appeal was previously presented to the Board in January 2012, at which time it was remanded for additional development. Specifically, the Board ordered the agency of original jurisdiction (AOJ) to provide the appellant with additional evidentiary notice, to request additional VA and private treatment records, and to obtain a VA medical opinion. The AOJ sent the appellant the requested notice in January 2012 and obtained the requested medical records in August 2012. Finally, a VA medical opinion was obtained in January 2012. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system (Virtual VA) reflects that it contains recent VA records and other documents not found within the physical claims folder. These documents have been noted and reviewed by the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in January 2007. The cause of his death was liver failure. 2. At the time of his death, the Veteran had been awarded service connection for posttraumatic stress disorder (PTSD), effective May 8, 1984. 3. Alcohol dependence was due to or the result of PTSD. 4. Alcohol dependence contributed materially to cirrhosis of the liver and subsequent liver failure. 5. The grant of service connection for the cause of the Veteran's death is a complete grant of benefits sought on appeal. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the appellant's favor, the criteria for service connection for the Veteran's cause of death are met. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.310, 3.312 (2013). 2. There are no remaining questions of fact or law to be decided on the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. 38 U.S.C.A. § 7104 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Given the favorable decision by the Board, there is no further duty to notify or assist the appellant or to explain how VA complied with the duties to notify and assist. Review of the physical and electronic claims file indicates additional evidence has been received subsequent to the most recent supplemental statement of the case, dated in November 2012. In October 2013, the appellant's representative waived consideration of this additional evidence by the agency of original jurisdiction (AOJ); thus, remand in order for this evidence to be considered by the AOJ is not required and the Board may proceed with adjudication at this time. Service Connection - Cause of Death The appellant seeks service connection for the cause of the Veteran's death. She asserts several contentions regarding his service-connected disabilities and the death of the Veteran. First, she contends that PTSD resulted in the Veteran's abuse of alcohol, which in turn resulted in cirrhosis of the liver and his subsequent death. She also asserts that his exposure to Agent Orange and other herbicides during service resulted in a cardiovascular disorder which in turn contributed to his death. Dependency and indemnity compensation (DIC) is 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 (2013). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. In the present case, at the time of his death, the Veteran had been awarded service connection for PTSD, diabetes mellitus, and a healed pigmented scar of the penile foreskin. He had also been awarded a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective October 4, 2000. He died on January [redacted], 2007 at a non-VA hospital at age 60. The cause of death was liver failure, and no contributing causes of death were noted. Immediately following his death, the Veteran underwent an autopsy which concluded his liver was damaged by both alcohol abuse and hepatitis. Specifically, the examining physician opined that the fatal cirrhosis was related to the "known history of chronic hepatitis and alcohol abuse." The examining physician also noted the Veteran's history of alcoholic liver disease, and stated this disease was a common etiology to cirrhosis. Considering next the assertion that service-connected PTSD resulted in alcohol abuse and subsequent cirrhosis of the liver with liver failure, a VA medical opinion was requested to address this question. According to a January 2012 VA medical opinion authored by a VA physician, hepatitis C was "the main cause of [the Veteran's] cirrhosis of the liver" and his alcohol abuse "did not contribute substantially or materially to his eventual death from liver failure." The reviewing physician based this opinion on the factual assumption that the Veteran had abstained from alcohol use since 2003. Review of the record, however, establishes that this factual assumption of abstinence from alcohol was incorrect. According to the January 2007 terminal treatment records, the Veteran continued to drink alcohol after 2003, and his social history was positive for alcohol use. Additionally, the appellant has stated on several occasions that alcohol use was ongoing by the Veteran. As the Veteran's spouse, the appellant is competent to report such observable behavior, and the Board finds her account credible, as it is consistent with the notations and reports in the clinical treatment records. Thus, the 2012 VA reviewer's opinion, because it was based on an inaccurate factual basis, is discounted by the Board. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual predicate is of no probative value). This VA reviewer in January 2012 also failed to address the 2007 autopsy report, discussed above, which concluded alcohol abuse contributed materially to death. While the VA reviewer is correct that the Veteran had a longstanding history of hepatitis, alcohol abuse by the Veteran was also longstanding, according to the record. When he initially sought VA treatment for psychiatric symptoms in 1985, a history of alcohol use was noted. At that time, the VA examiner diagnosed PTSD and alcohol dependence, unspecified. Subsequent VA clinical records confirm the Veteran's ongoing alcohol use, with repeated periods of remission and relapse up until his death in 2007. Thus, the Board finds the conclusion of the 2007 autopsy report, that alcohol abuse contributed materially to death, to be more consistent with the facts, specifically the Veteran's continued alcohol abuse, so is more probative. A VA medical opinion was also obtained in June 2013 from a VA psychiatrist. This reviewer stated the Veteran experienced hepatic failure of the liver and opined that this was unrelated to his alcohol abuse. The reviewer also assumed inaccurately that the alcohol abuse had ended in 2003, several years prior. Additionally, this VA reviewer opined opined that the alcohol abuse was not due to or the result of PTSD, as "alcohol consumption or abuse was not a manifestation of PTSD." Likewise, this reviewer opined that PTSD did not itself contribute substantially or materially to the Veteran's death, as the fatal multiple organ failure was unrelated to PTSD and the Veteran did not exhibit PTSD symptoms near the end of his life, according to the reviewer. Again, however, the Board must discount his opinion, as the examiner's opinion was based on the factually inaccurate assumption of discontinued alcohol use after 2003. This reviewer also relied on a factually inaccurate assumption that the Veteran did not exhibit PTSD symptoms near the end of his life. PTSD was rated as 70 percent disabling at the time of his death, which reflects both symptoms and occupational and social impairment due to PTSD, and the Veteran was also found by VA to be unemployable. On VA examination in 2002, a Global Assessment of Functioning (GAF) score of 51 was assigned, indicative of at least moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (4th Ed. 1994). The appellant has herself asserted that PTSD resulted in alcohol abuse and subsequent liver cirrhosis and death. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In the present case, the appellant is competent to testify that the Veteran used alcohol on a frequent basis during his lifetime. Moreover, VA may not did not categorically dismiss the appellant's lay assertions regarding both the presence and etiology of any alcohol-related disorder merely because the appellant is a layperson. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Alcohol-related disorders are recognized as disorders within the medical community. See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. Ed. 1994) (DSM-IV). Moreover, while service connection for alcohol abuse disabilities on a primary basis is barred, an alcohol abuse disability arising as a direct result of a psychiatric condition may be service connected. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (interpreting 38 U.S.C.A. § 1110). In Allen, overruling Barela v. West, 11 Vet. App. 280 (1998), the Federal Circuit Court held that veterans can recover for an alcohol or drug abuse disability secondary to a service-connected disability if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disability. Compensation would only result where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability. The Allen case primarily concerns situations where a veteran has a service-connected psychiatric disorder and is attempting to receive additional compensation, etc., for his alcohol and/or drug abuse on the premise that it is proximately due to or the result of his service-connected psychiatric disability. VA's National Center for PTSD (PTSD Center), in a January 1, 2007 statement, confirmed the possibility of a link between PTSD and alcohol-related disorders. The PTSD Center stated "People with PTSD are more likely than others with the same sort of background to have drinking problems." Further, the PTSD Center found: Up to three quarters of those who have survived abusive or violent trauma report drinking problems. Up to a third of those who survive traumatic accidents, illness, or disasters report drinking problems. Alcohol problems are more common for survivors who have ongoing health problems or pain. Sixty to eighty percent of Vietnam Veterans seeking PTSD treatment have alcohol use problems. War Veterans with PTSD and alcohol problems tend to be binge drinkers. Binges may be in response to memories of trauma. National Center for PTSD, "PTSD and Problems with Alcohol Use" (January 1, 2007) (found online at http://www.ptsd.va.gov/public/pages/ptsd-alcohol-use.asp). The appellant has also written and testified that the Veteran stated to her he used alcohol to numb his emotional pain and help him forget his intrusive memories of his traumatic experiences in Vietnam during service. Again, the Board notes the appellant is competent to testify regarding this symptomatology, as it is observable via the senses, and her accounts are found credible, as they are consistent with VA treatment records which note recurrent alcohol use. In conclusion, resolving reasonable doubt in the appellant's favor, the Board finds alcohol dependence was due to or the result of service-connected PTSD. Alcohol dependence in turn resulted in alcoholic liver disease and cirrhosis of the liver, which ultimately contributed substantially or materially to [along with cirrhosis] liver failure, the cause of the Veteran's death. Resolving reasonable doubt, service connection for the cause of the Veteran's death is thus warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Compensation under 38 U.S.C.A. § 1151 The appellant also seeks compensation for the cause of the Veteran's death "as if" service connected pursuant to 38 U.S.C.A. § 1151. Compensation pursuant to 38 U.S.C.A. § 1151 shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service-connected. 38 U.S.C.A. § 1151. In the above part of this decision, service connection has been granted for cause of the Veteran's death. Because service connection has been established, this is a complete grant of the benefit sought on appeal in this decision. Furthermore, the date of receipt of the application which initiated the service connection claim is prior to, or at least concurrent with, the date in which the appellant initiated the 38 U.S.C.A. § 1151 action. Thus the grant of service connection for cause of death is a greater benefit than that sought by the 38 U.S.C.A. § 1151 claim, so there no longer remains any controversy or justiciable claim as regards the matter of the entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death currently before the Board. As service connection for cause of death is being granted, the matter of the entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of death "as if" service connected must be dismissed. See 38 U.S.C.A. § 7104 (West 2002). ORDER Service connection for the cause of the Veteran's death is granted. The claim for compensation benefits under 38 U.S.C.A. § 1151 for the Veteran's cause of death, having been rendered moot, is dismissed. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs