Citation Nr: 1419598 Decision Date: 05/02/14 Archive Date: 05/16/14 DOCKET NO. 12-09 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nilon, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to October 1973. The Veteran died in January 2008; the appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa that denied service connection for the cause of the Veteran's death. Also on appeal is a February 2012 rating decision that specifically denied entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. In June 2012 the appellant testified before the undersigned Veterans Law Judge in a hearing at the RO ("Travel Board" hearing). A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c). The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's death was not caused by any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, or by an event not reasonably foreseeable CONCLUSION OF LAW The requirements for DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The appellant in this case was notified of the elements required to establish entitlement to DIC under 38 U.S.C.A. § 1151 by a letter in January 2010, and she had ample opportunity to respond prior to issuance of the February 2012 rating decision on appeal. Further, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing an error is harmful or prejudicial normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran's service treatment records and post-service Social Security Administration (SSA) disability file are associated with the claims file, as are post-service treatment records from those VA and private medical providers the appellant has identified as having records potentially relevant to adjudication of the issue on appeal. The Board notes that a medical opinion was not obtained in this case. Appellant has asserted the VA medical providers prescribed several medications (alprazolam, morphine and hydrocodone) that he was instructed to take together, which he did, resulting in his death. However, the medical evidence clearly shows the Veteran's death was the result of suicide, that VA refused to give him alprazolam, and that he was not prescribed morphine. Moreover, the appellant indicated that the Veteran obtained the alprazolam by buying it from a friend, an action that constitutes willful misconduct. Thus, the Board finds that the evidence is sufficient to render a decision in this matter, and that no opinion is needed. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The appellant was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the appellant, who testified as to the circumstances of the Veteran's death. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the appellant provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the appellant is not prejudiced by a decision at this time. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the appeal. Applicable Laws and Regulations Under the applicable criteria, DIC under 38 U.S.C.A. Chapter 13 shall be awarded for a qualifying death of a veteran in the same manner as if such death were service-connected. A qualifying death is one that is not the result of the veteran's willful misconduct, and the proximate cause of the death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2013). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2013). Death caused by the veteran's failure to follow properly given medical instructions is not caused by the medical treatment. 38 C.F.R. § 3.361(c)(3). The proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's death, it must be shown that the medical treatment caused the veteran's death (as explained in 38 C.F.R. § 3.361( c)); and that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the medical treatment without the veteran's, or in appropriate cases the veteran's representative's, informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of the veteran's death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was a type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis Treatment records from Trinity Regional Medical Center show the Veteran was hospitalized overnight on August 30-31, 2007, following an overdose of hydrocodone and Xanax. The Veteran denied any attempt at suicide, and stressed that he had taken the pills by accident. However, in October 2007 the Veteran demanded the VA provide him with Xanax (also known as alprazolam) and hinted at a suicide plan. The Veteran was admitted to inpatient VA hospital treatment on November 9, 2007, because his wife had initiated commitment procedures against him due to reported abuse of Xanax (which the Veteran strenuously denied); he was discharged on November 15 after a commitment hearing resulted in the commitment action being dropped. The Veteran died on January [redacted], 2008. The death certificate shows MANNER OF DEATH as "suicide" and CAUSE OF DEATH as "mixed drug (alprazolam, morphine, hydrocodone) intoxication." The Medical Examiner's report articulates the MANNER OF DEATH and CAUSE OF DEATH as reported in the death certificate. The report also lists pathologic diagnoses as follows: (1) mixed drug intoxication; (2) history of tonsillar cancer; (3) emphysema; (4) arteriosclerotic cardiovascular disease; (5) fibrosis of the left chest wall; (6) benign prostatic hyperplasia; and, (7) minor contusions and abrasions of the extremities. In the OPINION portion of the report, the Medical Examiner stated the Veteran had recently been diagnosed with cancer of the tonsils, and had expressed suicidal ideation to the effect that he was not going to die of cancer. Prior medical history was significant for a recent drug overdose; investigators at that time found an empty bottle of Lortab that was recently filled. Current toxicological examination revealed alprazolam at a level significantly higher than therapeutic; morphine at high-therapeutic level; and hydrocodone at therapeutic level. Diphenhydramine was also present in the blood. Urine contained very high levels of alprazolam, morphine and hydrocodone. In her correspondence to VA, appellant asserted that VA medical providers had prescribed several medications (alprazolam, morphine and hydrocodone) that the Veteran was instructed to take at the same time, and the Veteran did so, resulting in his death. However, in her testimony before the Board, she admitted that VA had refused to provide the Veteran with alprazolam, and that the Veteran obtained that drug from a friend. VA treatment records dated in January [redacted], 2008 (five days prior to the Veteran's death) show that VA providers specifically denied the Veteran's request for outpatient alprazolam, since he had a history of hospitalization for overuse of that drug. He was also noted to be allergic to morphine. The Veteran's VA active outpatient medications list at the time of his death consisted of hydrocodone for pain (not to exceed 2 pills every 6 hours), sertraline hydrochloride (also known as Zoloft) for depression, hydroxyzine hydrochloride (also known as Atarax or Vistaril) for anxiety and divulproex (also known as Depakote) for mood. He also had lidocaine mouthwash and as viscous liquid for sore throat and mouth; a tablet for tobacco cessation; a tablet for constipation; and, artificial saliva. The Veteran was apparently prescribed morphine in July 2007, because his pain was not being adequately controlled by hydrocodone, but he had an adverse reaction in August 2007 and the morphine was discontinued and hydrocodone was reinstated. On review of the evidence above, the Board finds that the preponderance of the evidence is against the claim. Initially, the Board notes that the appellant's initial allegation of VA fault in prescribing the three medications that resulted in an accidental overdose is disproved by the medical evidence. The Medical Examiner clearly stated that the Veteran died of a deliberate, not accidental, overdose of three drugs: morphine, alprazolam and hydrocodone. This finding of the Medical Examiner is consistent with the treatment record, which shows a recent history of suicide ideation. Thus, the record does not support the appellant's original contention that the Veteran had innocently combined medications that were prescribed by VA and should not have been taken together. The medical record also shows that only one of the three drugs listed as contributing to death was prescribed by VA. Hydrocodone was prescribed by VA, with clear instructions to the Veteran in regard to the appropriate dosage (not to exceed 2 pills every 6 hours). The other drugs that caused the Veteran to overdose (morphine and alprazolam) were not active prescriptions by VA, and VA specifically advised the Veteran that alprazolam was not an appropriate medication in his case. The Veteran's deliberate action in combining alprazolam in significantly higher than therapeutic levels with prescribed hydrocodone and discontinued morphine constitutes an intentional act by the Veteran, not an act by VA providers. In this regard, death caused by the Veteran's failure to follow properly given medical instructions is not caused by the medical treatment. 38 C.F.R. § 3.361(c)(3). Moreover, the Veteran was specifically advised that VA would not provide him with alprazolam despite his demand for the medication. His choice to illegally obtain this medication from a friend constitutes willful misconduct, which also prohibits payment of compensation under 38 U.S.C.A. § 1151. Turning to whether the Veteran's death was caused by an event not reasonably foreseeable, the Veteran was documented to have abused prescription drugs as early as July 1998. In April 2002 the Veteran was noted to be abusing his prescribed Xanax, and he terminated his own participation in the VA substance abuse treatment program because he did not want the alternative medications being offered. As noted above, the Veteran called VA in October 2007 demanding Xanax and hinting at suicide. The Veteran was admitted to inpatient VA hospital treatment on November 9, 2007, because his wife had initiated commitment procedures against him due to reported abuse of Xanax (which the Veteran strenuously denied); he was discharged on November 15 after a commitment hearing resulted in the commitment action being dropped. At the time, the Veteran denied current suicidal ideation, but the under the terms of his discharge home it was understood that his wife would remove all his old medications from the house and that the Veteran's private physician would be advised to cease providing the Veteran with benzodiazepine. It appears that since morphine had been discontinued months earlier, either he had obtained new morphine elsewhere or action to remove the old medication from the home had not occurred. Moreover, instructions as to the appropriate dosage of hydrocodone were provided. Thus, it was reasonably foreseen at the time of the Veteran's discharge from VA inpatient care that he might resume abusing medications, and reasonable measures were taken to prevent that from happening. In sum, based on the evidence and analysis above the Board finds the Veteran's death was the result of his own deliberate actions to intentionally result in death, his failure to follow properly given medical instructions in taking his medications, and illegally obtaining Xanax. There is no competent and credible evidence that the Veteran's death was caused by any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, or by an event not reasonably foreseeable. Accordingly, the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to DIC pursuant to 38 U.S.C.A. § 1151 is denied. REMAND The Board finds that additional development is required before the issue of entitlement to service connection for cause of the Veteran's death can be adjudicated. The Veteran had no established service-connected disabilities at the time of his death in January 2008, but review of the file shows the Veteran was variously diagnosed with major affective disorder, mood disorder, posttraumatic stress disorder (PTSD), major depression, generalized anxiety disorder (GAD), dysthymia and bipolar disorder; he was also diagnosed with substance abuse/dependence (alcohol and prescription medications). During the Veteran's lifetime the RO denied service connection for PTSD on several occasions, most recently in August 2007; the RO also denied service connection for anxiety and depression in March 2003. The Veteran had a VA PTSD examination in December 2007, less than one month before his death. The examiner diagnosed current major depressive disorder, dysthymia, alcohol dependence in full remission, anxiolytic dependence in early full remission and anxiety disorder. In relevant part, the examiner stated the Veteran may have had PTSD after service that remitted, but whereas the PTSD symptoms remitted his depression and anxiety persisted, independent of PTSD for the most part. Thus, the file raises the possibility that the Veteran's suicide could have been caused by a psychiatric disorder, however diagnosed, that is related to service. Accordingly, the case is REMANDED for the following action: 1. Submit the file for review by a VA psychiatrist or psychologist to determine whether it is at least as likely as not that the Veteran, at the time of his death, had a diagnosed psychiatric disorder that was incurred in or otherwise related to service; and, if so, whether it is at least as likely as not that such psychiatric diagnosis either caused the Veteran's suicide or materially contributed to his suicide. (For a service-connected disability to be the cause of death it must be the immediate or underlying cause, or be etiologically related. To be a contributing cause, it is not enough to show that is casually shared in producing death, but rather there must be a causal connection.) The rationale for all opinions expressed should be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. After completion of the above, and any additional development deemed necessary, the AOJ should review the expanded record and determine if service connection for cause of the Veteran's death can be granted. If the benefit sought remains denied, furnish the appellant and her representative with a supplemental statement of the case and afforded them an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim has been advanced on the Board's docket and must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs